old-guy

Remarriage automatically revokes previous Will

Court of Protection publishes judgement on capability to marry

An elderly man (DMM) wished to marry his long term co-habitant with whom he had lived for more than 20 years.

He was previously married & divorced many years ago and had 3 daughters from that marriage. In 2013 he had executed a Will giving his co-habitant most of his pension, a £300k legacy, and the right to live in his house for 2 years. The remainder of his estate (which formed the majority) went to his daughters.

In 2016 he announced his intention to marry. But, by now DMM had Alzheimers disease. One of his daughters sought and obtained an injuction preventing DMM from marrying on the grounds that he lacked mental capacity. (Note: marriage would have had a significant adverse effect on the daughter’s inheritance as it would automatically have revoked his Will and his advancing dementia would probably mean that DMM would be legally incapable of making a new Will; the probability would be that DMM would die intestate and under rules of intestacy the daughters would only get the statutory legacies.)

The case came to the Court of Protection who instructed a specialist to not just assess DMM’s capacity to understand marriage but also the effect on his daughters’ inheritance.

The specialist psychiatrist reported that in his opinion DMM did possess the mental capacity to understand the implications of marriage and further that he understood his daughters may get less inheritance and his spouse more.

The judge accepted his opinion and made the Order to the effect that DMM could marry.

No further update is currently available.

Statutory Legacy

In this case the impact, assuming an estate of £1.5m, would have been that the heirs would receive: (Note: the example below is for illustration purposes only showing what could happen and cannot be taken as a representation of what would happen in any specific situation.)

Under Current Valid Will (assuming estate value of £1.5M)Dying Intestate (assuming estate value of £1.5M)
Partner / New Wife£300,000
+ Most of Pension
+ Right to live in house for 2 years
£250,000
+ Personal Chattels
+ 50% of remainder = £625,000
Each Daughter (assuming 3 daughters getting equal share)£400,000 (1/3rd of £1,500,000 – £300,000)
Share of personal chattels
(1/3rd of (£1,500,000 – £250,00) / 2))
(1/3rd of £625,000)
(£208,333)
No personal chattels

Intestacy

Please refer to the Intestacy Flowchart for a summary of the law when someone dies intestate