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23.01.18

Getting married? The rule about your will which you need to be able to understand in order to say “I do” – Article by Justin Holmes

In Re DMM HHJ Nicholas R Marston held that a man who could not understand that his proposed marriage would invalidate his existing will could not legally decide to get married.

In a new decision, Re DMM, currently only reported on Lawtel, HHJ Nicholas R Marston decided that a man who in other respects had capacity to marry could not lawfully marry because he could not understand that marriage would invalidate his existing will. DMM had three daughters by his first marriage, but he had been divorced many years ago, and he has been living with SD for 20 years or more. DMM has developed Alzheimer’s Disease. DMM now wishes to marry SD. His daughter EJ considers that he does not have capacity to marry, and applied to the Court for an injunction stopping any marriage. There was evidence before the Court that DMM did understand the nature and purpose of marriage, including the existence of moral and financial obligations between the parties. He did, not, however, understand “the actual financial implication that marrying SD will have in terms of the effect upon his will and therefore any provision that he may wish to make for others”, and could not retain that information for long enough to make a decision on the basis of it. The judge accepted that it would be wrong to require those who wished to marry to have more than a “rudimentary” understanding of the financial consequences of marrying (using the word used by Parker J in L B Southwark v KA [2016] EWCOP 20), but considered that the invalidation of an existing will by marriage is not a hypothetical consequence of marriage but an absolutely certain one which DMM had to be able to understand, weigh and use in order to make a capacitous decision.

This decision has an air of unreality about it, in the sense that the effect of marriage on existing wills is something which many capacitous people don’t know and which would make no difference to them if they did. The point, however, is that the Court was not deciding whether DMM should marry SD; it was deciding whether he could understand what he needed to be able to understand to make that decision. For some people – and particularly people who might not have testamentary capacity and might not therefore be able to make a new will – the invalidation of an existing will by marriage could be a highly relevant factor in their decision.

A problem with the decision is that it is not clear from the evidence quoted by the judge exactly what it was that DMM was unable to understand. Was he simply unable to understand that his will would be invalidated by the marriage, or was it more that he was he unable to go on and understand the effect on the disposition of his estate of the invalidation of his will? It might be said that the effect of the will’s invalidation, involving as it does the intestacy rules and the Inheritance (Provision for Family and Dependants) Act 1975, is exactly the kind of complex hypothetical factor which intending parties to marriage have not previously been required to know.

This decision is in any event something of a departure from the decisions of Munby J in Sheffied CC v E [2004] EWHC 2008 (Fam) and Parker J in L B Southwark v KA. Although an intending bride or groom needs to be capable of only a “rudimentary” understanding of the nature and purpose of marriage and of the parties’ mutual obligations, it seems that he or she also needs to be able to understand the specific legal rule that marriage invalidates a will.

Given the importance of this question both to people who want to get married and to sons and daughters who consider that their parents have lost capacity to remarry, this is unlikely to be the last word on the subject.

Article by Justin Holmes