The right to say I do: court determines the legal test for capacity to marry

Posted: 01/02/2018

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The issue of capacity to marry has recently been considered by the Court of Protection in the case of DMM, an elderly man who suffered from dementia. He wanted to marry his long term partner against the wishes of his three daughters from his first marriage.

In July 2017 the court was asked to decide if the legal test for whether a person had capacity to marry included a requirement that he or she should be able to understand, retain, use and weigh information as to the reasonably foreseeable financial consequences of a marriage. In this particular case, DMM had made a will on 11 December 2013 in which he divided his estate between his partner and his daughters, with his daughters inheriting the greater proportion of his estate. His marriage to his long term partner would have the effect of revoking his will and his estate would therefore pass in accordance with the intestacy rules, with his new wife receiving a greater proportion and his daughters less.

The issue of capacity is set out in the Mental Capacity Act 2005 and in particular section 3 of part 1 sets out the principles with regard to a person being unable to make decisions: 

'…a person is unable to make a decision for himself if he is unable:

• To understand the information relevant to the decision;
• To retain that information;
• To use or weigh that information as part of the process of making the decision; or
• To communicate his decision.'

The Act goes on to state that: 

'The information relevant to the decision includes information about the reasonably foreseeable consequences of:

• Deciding one way or another, or
• Failing to make a decision.' 

So, was it necessary for DMM to understand the financial consequences of this marriage, namely that it would revoke his will and that therefore his new wife would receive more than she would have done under his 2013 will and his daughters less?

The judge held that the effect of the marriage of revoking the will was not a foreseeable consequence but a certain consequence. This was a statement of fact not a hypothetical situation. He held therefore that the fact that a second marriage revokes a will is information which a person should be able to understand, retain, use and weigh to have capacity to marry.

The matter was heard again in September 2017 and Dr Hugh Series, a consultant psychiatrist specialising in old age, gave evidence. He was asked to provide an opinion not only on DMM’s understanding of the personal aspects of marriage but also the effect on his daughter’s finances.

Dr Series testified that DMM understood that his daughters would receive less than before on his death as a result of the marriage and that he therefore had capacity to marry. The court accepted this opinion and made an order to that effect.

Cases regarding capacity to marry are unusual but this case is an example of the increasing number of second or third marriages in later life which will inevitably give rise to questions about capacity in our ageing population and the financial consequences for other family members.

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