An article has hit the headlines regarding a High Court decision to allow an elderly man with dementia to marry his partner despite objections by his daughters.

The marriage would have automatically revoked the man's will meaning that under the intestacy rules his wife would inherit a significant share of his estate and drastically reduce the inheritance his daughters will receive.

There are two different decisions that the Court had to consider; capacity to marry and capacity to make a will.

The decision to marry does not actually require a high degree of mental capacity.  In previous cases Judges have commented that there are many people in society who may have limited mental capacity but whose lives are enriched by marriage.

The test for ability to make a will is set out in very old case law and requires quite a high level of capacity; that they understand the act of making a will, have an awareness of their assets and the potential claims that others may have against their estate and are not suffering from any delusions or disorders that might affect their decisions.

In this case, the father has been found to have capacity to marry, but the decision about whether he has capacity to make a will has been referred to the Court of Protection.  It will fall to the CoP to decide whether Dad can make a new will after his marriage or whether the Court should make one on his behalf if he lacks capacity.

This case serves as a reminder that there are different tests for mental capacity relating to specific situations.  Some decisions require a relatively low level of capacity, meaning that a decision with wide ranging consequences can be validly made by a person who struggles to make decisions for themselves.

It also highlights the fact that marriage automatically revokes the couple's existing wills, unless they have been made specifically in expectation of the marriage.  If couples don't make new wills there can be unexpected consequences for their families, particularly where there are children from previous relationships who may be 'cut out' accidentally.

With marriage in later life becoming more common, couples need to carefully consider the way assets will be passed on and any expectation their children may have about potential inheritance.