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28 August 2018 | Comment | Article by Roman Kubiak TEP

Court provides guidance on assessing capacity to marry where this would revoke a will

The recent case of EJ v SD concerned the proposed marriage between DMM and SD. DMM was in his mid-eighties and had three adult daughters from his first marriage, including EJ. EJ also had an enduring power of attorney for DMM in respect of both his property and finances and health and welfare.

SD had lived with DMM for some 20 years and, in 2013, DMM executed a will in which he left a legacy of £300,000 to SD, along with two-thirds of his pension and a right to occupy his property for two years following his death. The remainder of his estate was to be split equally between his three daughters. He was then diagnosed with Alzheimer’s.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

In late 2016, SD took DMM to a consultant psychiatrist for a capacity test on the basis that DMM wished to revoke the existing power of attorney and make a new one, and also to marry SD. EJ then entered a caveat at a local registry office preventing the marriage from taking place.

The proposed marriage between DMM and SD was of great importance in this case because it was feared that DMM did not have the requisite capacity to make a new will, either in contemplation of his marriage or following it. In practical terms, this meant that DMM’s daughters might stand to inherit drastically less than they would have done under the terms of his 2013 will. At the time of the hearing, the gross value of DMM’s assets was over £1.7m; if DMM were to die intestate, the majority of his estate would pass to SD which was contrary to what DMM intended when he executed his will in 2013.

Marston J was therefore asked to decide whether the test for capacity to marry should include the requirement that a person should be able to “understand, retain, use and weigh information as to the reasonably foreseeable financial consequences of a marriage, including that the marriage would automatically revoke the person’s will”. In reaching his decision, he referred to the test set out in section 3 Mental Capacity Act 2005.

Marston J concluded that the fact that DMM’s will would be revoked by the marriage was not just a “reasonably foreseeable” consequence of marriage, but that it was a certain one which would have “financial consequences” for the parties. He subsequently held that the fact that a new marriage operates to revoke a will is “information a person should be able to understand, retain use and weigh to have capacity to marry”.

Following a further report from the consultant psychiatrist, it was found that DMM did indeed understand the effect his marriage would have on his will and he was therefore found to have the requisite capacity to marry.


EJ v SD has seemingly provided some valuable protection for vulnerable testators; whilst the test for capacity to marry is low, the consequences of a marriage can be complex and wide-reaching. The addition to the common law test set out in EJ v SD may therefore assist in preventing those suffering from dementia and other conditions affecting capacity, and younger, vulnerable adults, all of whom could fail to meet the standard of capacity required for testamentary affairs, from being taken advantage of through marriage.

However, it is important that the public policy concerns addressed in previous case law are not forgotten. The test for capacity to marry must not be a difficult one to overcome; as Marston J stated, it must not present a bar against those with capacity issues and potentially deny them that which all the rest of us enjoy if we choose; a married life.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.


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