It’s something that tends not to feature prominently on the long list of wedding preparations: flowers, catering, invitations, music, make a new Will… But you might be blissfully unaware that getting married revokes your existing Will, and without a new one your estate would pass under the intestacy rules rather than in accordance with your wishes.
This issue was highlighted in a recent case. Mr DMM had a valid Will which left his estate to his partner of 20 years and his three daughters. When he and his partner decided to get married, his daughters tried to prevent him from doing so on the grounds that he lacked mental capacity. One of his daughters had Power of Attorney for him in respect of his financial affairs and it was argued that he did not have sufficient understanding to enter into a valid marriage.
A marriage would revoke his Will, and his wife would be entitled to much more of his estate under the intestacy rules than she would receive under the Will.
The court held that, whilst Mr DMM did not have capacity to run his financial affairs, he did have capacity to marry. The judge noted that capacity to marry requires an appreciation of the fact that marriage will invalidate an existing Will, and he found that Mr DMM did understand that.
The judge also confirmed what courts have previously found, that someone’s mental capacity to marry does not have to include an understanding of the financial consequences of a divorce.
James Laycock, Wills, Trusts and Estates Partner, commented: “Under the Mental Capacity Act, capacity is issue specific, so you might have capacity to do one thing but not another. In this case the expert brought in to assess Mr DMM thought that he did not have capacity to revoke the Power of Attorney made in favour of his daughter but did have capacity to marry his long term partner. The test for capacity to make a Will is slightly different again and we frequently see challenges to Wills because it is asserted the testator did not have sufficient mental capacity for the Will to be valid.”
The court was not asked to decide whether Mr DMM had the capacity to make a new Will, but its ruling automatically triggered substantial changes to the
inheritance entitlements of his daughters and his proposed wife on his death.
James says: “Not many people appreciate that getting married will revoke an existing Will. This point has been raised by the Law Commission in the recent consultation on Wills and it has been questioned whether the law should be changed in this area. In any event, there should be greater awareness of this issue.”
Ros Bever, Head of Family, comments: “When considering getting married it’s worth thinking about the possible benefits of a pre-nuptial agreement, in particular because it offers greater certainty in the event the marriage breaks down. But while most people are aware that divorce can have significant financial implications, with celebrity and high net worth divorces highly publicised in the media, the impact of marriage and divorce on inheritance is much less talked about.
“Not only does marriage invalidate an existing will and confer new entitlements on each spouse, but the effect of divorce is that your former spouse is treated as having pre-deceased you – so any provisions in your will relating to your former spouse can no longer take effect. This may effectively render the Will useless.
“So it’s essential whenever you have a major life event that you take advice.”
Published: 22 February 2018
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