Local Authority v AC: Hidden succession risks and the implications for predatory marriage

A recent Court of Protection judgment, A Local Authority v AC (Consent to Marriage) [2026] EWCOP 31 has provided further guidance on the assessment of capacity to marry.

Broadly, the case concerns an alleged forced marriage for a young vulnerable woman during a family trip to Pakistan. Its significance, however, extends beyond the circumstances, particularly when considering estate planning for vulnerable individuals.

The judgment brings into sharp focus the disparity between the relatively low threshold for capacity to marry and the considerably higher threshold for testamentary capacity (capacity to make a will). In doing so, it provides a timely opportunity to examine the interaction between capacity to marry, testamentary capacity and succession, and the vulnerability that this disparity may create, particularly in the context of predatory marriage.

Summary of case

AC was a 20-year-old woman with moderate learning disabilities and had a genetic condition associated with intellectual disability, developmental delay, speech difficulties and impaired mobility.

In October 2024, AC and her family visited Pakistan, where they attended a family gathering and where she met her proposed husband for the first time. On 2 November 2024, an Islamic marriage ceremony took place (a Nikah) between AC and the proposed husband at AC’s aunt’s home.

The judgment arose in the context of concurrent criminal proceedings and concerned whether a further assessment of AC’s capacity, sought for the purposes of the criminal proceedings, required approval by the Court of Protection as a best interests decision. The Court held that it did.

However, in reaching that conclusion, the Court undertook a valuable review of the legal framework for the test for capacity to marry and addressed the impact on it of a changing and diversifying society. This brought to light questions regarding the effectiveness of the criteria for determining a person’s capacity to marry and added further simplification to support its practicality. The Court emphasised that it is specifically the “agreement” of a marriage that needs to be understood, rather than the fairness of the terms or the wisdom of the consent.

Importantly, this case reiterates that the information a person must understand in order to have capacity to marry does not extend to every legal or financial consequence of marriage. This is particularly significant when the succession consequences of marriage are considered.

The effect of marriage on a will

Under section 18 of the Wills Act 1837, a will is generally revoked automatically where the testator subsequently marries, unless it was made in contemplation of that marriage and the statutory requirements are satisfied.

Accordingly, a valid marriage will ordinarily revoke an existing will regardless of the circumstances in which the marriage came about.

If an individual does not, therefore, make a new will following marriage, their estate will pass under the intestacy rules (which are a set of rules that decide how someone’s estate should pass when there is not a valid will in place). Those rules confer significant inheritance rights on a surviving spouse and, depending on the value of the estate and whether the deceased leaves children, a spouse will inherit at least some, if not all, of the estate under the intestacy rules.

Marriage can therefore substantially change an individual’s succession arrangements without them taking any active step to change their will.

For example, an individual may have made a valid will leaving their estate to their children or other family members. If they subsequently marry, that marriage will revoke their will. If they then die without making another valid will, the surviving spouse will become entitled to a substantial part of the estate under the intestacy rules, notwithstanding the very different intentions expressed in the earlier will.

This interaction between marriage, the automatic revocation of a will and the intestacy rules gives rise to a particular vulnerability in cases of “predatory marriage”. This term is commonly used to describe situations in which a person exploits a vulnerable individual by entering into a marriage with a view to obtaining financial benefit, including rights arising on death.

Capacity to marry versus testamentary capacity

Despite the radical effect marriage can have on someone’s testamentary arrangements, the legal test for capacity to marry is comparatively simpler than the test for testamentary capacity.

To have capacity to marry, an individual must broadly understand the nature of marriage as a formal agreement between two adults involving reciprocal commitments, recognised by others and capable of being ended only through a formal legal process. They are not required to understand every legal or financial consequence of marriage, including its effect on an existing will. In AC, the Court confirmed that capacity to engage in sexual relations is a prerequisite to capacity to marry, while reaffirming that the threshold for capacity to marry remains intentionally low.

By contrast, the test for testamentary capacity, established in Banks v Goodfellow (1870), is more detailed. A person making a will must understand the nature and effect of making a will, the extent of their assets and property, and the claims of those who might reasonably expect to benefit from their estate. They must also be free from a disorder of the mind which influences the dispositions made in the will.

In practice, the differing thresholds of these tests can have significant consequences in respect of estate planning. A vulnerable person may have sufficient capacity to marry without understanding that doing so will revoke their existing will. At the same time, that person may lack the testamentary capacity necessary to make a new will reflecting their wishes after the marriage.

In such circumstances, previous testamentary arrangements will be displaced, not because they consciously decided to change who should inherit their estate, but as an automatic legal consequence of the marriage – a consequence which they are not required to understand.

Why does this matter in cases of predatory marriage?

The distinction between the capacity tests is significant in cases of predatory marriage because a vulnerable person susceptible to influence may not be able to manage complex financial affairs or deal with their testamentary arrangements, but this does not necessarily establish that they lack capacity to marry.

That creates the possibility of a particularly difficult outcome whereby a vulnerable person may have capacity to marry, yet lack the testamentary capacity necessary to make succession arrangements following that marriage.

This establishes an opportunity for someone to exploit that disparity by marrying a vulnerable person with a view to obtaining a financial advantage from their estate.

What if the person lacked capacity to marry?

The position is not necessarily resolved even where there is evidence that the individual lacked capacity to consent to the marriage at the time that it took place.

Under section 12 of the Matrimonial Causes Act 1973, a marriage entered into without valid consent, including in circumstances where a person was unable to consent because of their mental state, is voidable rather than automatically void.

A voidable marriage is treated as valid unless and until the Court grants a decree of nullity. It should not therefore be assumed that evidence of a lack of capacity to marry will enable the succession consequences of the marriage simply to be disregarded. Importantly, a marriage can only be annulled while both spouses are still alive.

This creates a particularly difficult practical position when concerns about the marriage only emerge after death. At that stage, remedies which might have been available during the individual’s lifetime may no longer be available, or may be considerably more difficult to pursue.

When would a statutory will be required?

Where an individual lacks testamentary capacity, the Court of Protection has jurisdiction to authorise the execution of a statutory will on their behalf under the Mental Capacity Act 2005.

In deciding whether to do so, the Court will determine whether the proposed statutory will is in the person’s best interests, taking into account a range of factors including their wishes and feelings, relationships with others and the views of others involved in their care.

Accordingly, where a marriage has revoked an existing will and the individual lacks testamentary capacity to make a new one, it may be appropriate to consider an application for a statutory will. This may be particularly important where the intestacy rules would produce an outcome that does not reflect the person’s wishes, feelings, values or likely intentions.

Key takeaways

Where concerns arise about a proposed or recent marriage involving a vulnerable person, consideration should be given at an early stage not only to their capacity to marry, but also to the wider consequences for their estate planning.

Depending on the circumstances, this may include considering whether an application to the Court of Protection is required, whether protective orders or other safeguarding measures should be sought, and whether the individual’s testamentary arrangements need to be addressed, including through a statutory will where they lack testamentary capacity.

It is therefore important for concerns to be identified at an early stage and for legal advice to be sought promptly. Where issues are identified during the individual’s lifetime, a range of legal and protective measures may be available, depending on the circumstances. Once the individual has died, however, the available options are likely to be more limited, with disputes often needing to be resolved through contentious probate proceedings.

Ultimately, the key point is timing. The law provides a range of protective measures during an individual’s lifetime, but once death has occurred, the focus is likely to shift from prevention to resolving the succession consequences through contentious probate proceedings.