Son given authority to gift himself £6 million by Court of Protection
Judge rules mental capacity to marry but not over own finances
The Court of Protection for England and Wales has granted permission to a man to marry his fiancée, even though there were questions surrounding his mental capacity and an objection made.
The 28-year-old man does not have the mental capacity to manage his financial affairs and because of this, has a financial deputy in place to manage them on his behalf. The man has also had learning difficulties since childhood.
Legal professionals have long been concerned that the barometer for judging mental capacity to make a Will is more stringent than the test for who is fit to marry. While many may believe that it’s not a court’s place to decide who can marry, marriage automatically revokes a pre-existing Will unless made specifically in contemplation of the marriage and can therefore fundamentally change the entitlements to an estate after death.
This recent case which was heard in September 2019 shows us that the courts are now leaning in favour of an individual’s rights to marry, regardless of mental capacity over their own finances. It was brought about by the man’s financial deputy who manages an estate worth around £1.5 million on behalf of the man.
He raised concerns after the man announced he intended to marry his fiancée, who he met three years ago and now lives with, along with her two children. The man’s financial deputy challenged his intentions on the basis that the individual does not have the mental capacity to consent to marriage.
The financial deputy raised concerns that the individual is easily persuaded, is very vulnerable and has difficulties saying no. The financial deputy also had concerns about the financial implications insofar that the individual would not be able to understand all of the implications of marriage, due to his lack of mental capacity, more importantly, understanding the implications of if they were to divorce, then the wife could have a financial remedy claim against his estate.
Judge Mostyn from the Court of Protection disagreed with the prevention application by the financial deputy and stated that the individual had previously been confirmed as having mental capacity to prepare a Will, leaving everything to his parents and that the threshold to consent to marriage, is likely to be lower than the mental capacity threshold to understand and execute a Will.
Judge Mostyn also noted that people can have capacity to marry without the need to understand how a financial remedy law claim works.
In conclusion to the case, Judge Mostyn dismissed the financial deputy’s application to prevent the marriage and subsequently granted the individual permission to marry his fiancée. However, Judge Mostyn did suggest that the individual prepare and execute a codicil to his current Will, legally stating that his marriage does not invalidate his current Will.
While a unique situation, this case can be used as a benchmark for others questioning the different tests used to establish mental capacity to consent to marriage.
At Brachers we have a specialist Court of Protection team dealing with capacity issues so if you have any questions, please contact us.
- News & Events