How marriage affects the validity of a will

Wills & weddings can be a difficult marriage. For further information on how marriage affects the validity of a will contact our free legal helpline on 0808 139 1606 or by dropping us an email.

A recent case in the Court of Protection has highlighted how marriage affects the validity of a will.

A father of three daughters in his mid-eighties had given one of them a lasting power of attorney before he developed Alzheimer’s. He had also drawn up a will leaving his long-term partner the following:

(i) lump sum of £300,000;

(ii) the majority of his Pension; and

(iii) the right to live in his home for two years.

The Residue of his £1.7 million estate was to be divided equally between his three daughters.

The father subsequently indicated a wish to marry his partner. The daughter who was his attorney applied to the Court of Protection to prevent the marriage.

One of the court’s considerations was how marriage affects the validity of a will. When someone marries, any will made before the marriage is automatically revoked, unless it is made in contemplation of the marriage. Accordingly, unless the person then makes a new will after the marriage then they will have no valid will.

Where there is no valid will the rules of intestacy apply. Under those rules, his new wife would have received £250,000, together with half of the rest of the estate. The other half would be divided equally between the three Daughters.

The Court of Protection decided, that although the father lacked the necessary capacity to make a valid will, he still had the mental capacity to choose to get married; the legal threshold for capacity to marry being far lower than what is required to make a valid will.

The decision to marry is not considered particularly complex. All you have to understand is that you are getting married to the person you wish to marry and that you are not already married. You do not need to understand the complexities of how the marriage may affect your will or financial circumstances.

So the Court of Protection allowed the marriage to proceed even though the father was then unable to make a new will.

The Court of Protection encouraged the family to put the dispute behind them and focus on care, as the father was likely to need a lot of help in the future.

If you require guidance on how marriage affects the validity of a will or you are involved in or dealing with an estate where a dispute has arisen then please contact us for a FREE case assessment on 0808 139 1606 or send us an email. 

Author: cpl

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