Wills, marriage and vulnerable adults

The test of capacity to marry is a lower one compared to some other decisions

In recent years awareness has increased about a form of financial abuse of elderly people which occurs when a younger person marries an incapacitated older person with the objective of inheriting their partner’s estate. Even if the older person already has a Will, the marriage revokes (cancels) the existing Will. This means that, unless a new Will is made either after the wedding or before the marriage in contemplation of it taking place, when the older person dies the entire estate, or a large proportion of it, will pass to the younger spouse under the intestacy laws.

For example, Harry is aged 75 and in the early stages of dementia. He is befriended by his much younger neighbour, Belinda. Harry has made a Will leaving his estate to his two children. Belinda realises that Harry has a house and some savings and takes advantage of Harry’s vulnerable state. They decide to get married. Harry’s Will is revoked by the wedding and when he dies a year later the majority of his £450,000 estate  passes, according to the intestacy rules, to Belinda.

How does Harry have capacity to marry?

A person in the early stages of dementia may retain capacity to make most decisions and will continue to do so until they can no longer, with help if necessary, understand information relevant to the decision in question, weigh up that information in deciding competing courses of action, retain the information and communicate their decision. The assessment of capacity in any case is related to the particular decision to be made and different tasks will require different levels of capacity. A decision over what food to have at a particular meal, for example, demands a much lower level of capacity than a decision over where to live.

In order to have capacity to marry, it has been held that a person must understand the nature of the marriage contract and the rights and responsibilities that flow from it. In a case decided two years ago, the court held that, although a person getting married should have a basic factual understanding that his existing Will would be revoked and the destination of his estate might be consequently altered, there was no requirement for an understanding of the full financial consequences of marriage. The test of capacity to marry is a lower one compared to some other decisions (such as, for example, capacity to litigate) so it is possible that someone like Harry could marry without having capacity to make a new Will.

How to prevent inadvertent disinheritance

It has been suggested  that the current rule which provides that a Will is automatically revoked on marriage should itself be revoked. This forgets that in the vast majority of marriages there is no element of undue influence or financial bad faith, and changing the current law would lead to many spouses receiving little or no benefit if their spouse were to die with an outdated Will in place. This would then lead to an increase in claims by partners against estates for reasonable financial provision.

The Law Commission, in its recent review of the law relating to Wills, stated that there are arguments both for and against the current law and asked for the public’s views on this subject. The responses to the review are, however, still being considered and reform of testamentary law seems to have been postponed for the time being.

If someone is being financially abused

If you, or your client, believe that someone vulnerable is being financially abused you can report your concerns to adult Social Services or, if there is a power of attorney or court appointed Deputy in place, to the Office of the Public Guardian. Charities which run a telephone support line, such as Action on Elder Abuse, may also be able to help.

Many individuals who marry later in life will be marrying for a second time, and may have been widowed previously. If appropriate provisions are made in Wills during the first marriage, the incapacity or re-marriage of the surviving spouse will not affect the children’s entitlement to the estate of the first parent to die. Further information about protecting family wealth on second marriage is available here.

By drawing up a lasting power of attorney your client can appoint people they trust to mange their finances if they become incapable and this will help to protect them against financial abuse by unscrupulous persons they might meet later in life.

Public education about the consequences of not making a new Will after marriage would make those who retain the capacity to make a Will aware that they can take action before re-marrying to protect the inheritance of children from an earlier relationship.

Some campaigners would like Registrars to be trained to recognise signs of insufficient mental capacity, and to stop ceremonies if they feel that it is necessary.  There is no indication at the moment that that change in practice will be made.