Capacity, Marriage and Inheritance

01 February 2018

Author: Stephanie Johnston
Practice Area: Private Client


An interesting judgement surrounding capacity, marriage and inheritance has recently been made available by the Court of Protection in England and Wales.

An elderly gentlemen, who had been cohabiting with his partner for more than twenty years, expressed his wish to marry his partner. Whilst this does not seem to be an irregular wish, the elderly gentleman was suffering from Alzheimer’s disease.

The gentlemen had made a will a number of years previously which provided for a pecuniary legacy of £300,000 in favour of his partner together with the right to live in the property for the period of two years after his date of death. His daughters, from a previous marriage, would inherit the remainder of his estate.

As marriage revokes a will it is undestandable that his daughters were concerned about their future inheritance. As their father was also suffering dementia, this may have meant that after the will was revoked he would not have the relevant capacity to enter into another will, especially due to the progressive nature of dementia.

One of his daughters obtained a medical opinion stating that her father did not have capacity to marry, considering the effect of the marriage on his daughter’s personal financial affairs. The case was referred to the Office of Protection where a leading psychogeriatrician concluded that he did have capacity and fully understood that in entering into a marriage with his long term partner might mean that his children might receive less and his partner more on his death. The Court rules on the basis of this opinion.

Whilst this case is interesting on its facts alone, it also emphasises the need to undertake estate planning when cohabiting with a partner. Many people have a misconception that upon your death a cohabitee will automatically inherit your estate upon death. This is not the case. The rules of intestacy do not provide for cohabitees (although a cohabitee will have a claim under Inheritance (Provision for Family and Dependants) (N) Order) and therefore estate planning in such circumstances is even more important to ensure that you provide adequately for your partner.

The case also shows that it is important to ensure that your estate planning is undertaken whilst you are of sound mind and you review your affairs regularly.

This case also shows that it is important to remember that if you have a diagnosis of dementia it does not mean that you have lost your capacity to undertake estate planning measures and you should speak with your legal advisor at the earliest possible opportunity after a diagnosis.

Our firm’s private client team specialises in providing both estate planning advice and advice around capacity issues. Should this be of interest to you, please contact Neil Bleakley, Fiona Wallace or Stephanie Johnston.