The Court of Protection in England and Wakes recently granted a 28-year-old man permission to marry, even though he lacks the capacity to manage his affairs.

STEP, the professional association for practitioners who specialise in family inheritance and succession planning, reported the case on their website and wrote that the man P has had learning difficulties since childhood. As an adult, he lost his leg in a traffic accident and received compensation of £1.5 million.

P had been appointed a deputy, Adrian Mundell, who managed his financial affairs, including the compensation claim. The money was spent partly on buying him a home and the rest invested.

Serious concerns

Earlier in the year, P said he wanted to marry a woman he had met three years ago. She and her two children now live with him. Mr Mundell, however, had serious concerns about the decision—particularly relating to the financial implications. P had made a will in which he left his entire estate to his parents. This would be revoked when he married unless he made specific plans to keep his will as originally intended.

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Mr Mundell applied to the Court of Protection to prevent the marriage. He said P had privately expressed indecision about getting married. A clinician’s assessment said P was easily persuaded and had difficulties saying no—adding that he was very vulnerable and was open to being exploited.

Mr Mundell expressed concerns that P did not understand that if he married and then divorced, his wife would be able to make a claim on his estate. He applied to the court for a declaration that P did not have the capacity to marry.

Necessary degree of mental capacity

The court disagreed. Because P had already made a will, then the necessary degree of mental capacity was likely “to be higher than that is needed validly to contract a marriage”. An earlier judgment in another case was to the effect that people can have the capacity to marry and they do not need to understand how financial remedy works.

Mostyn J said it would be inappropriate to introduce the test for capacity to marry as a requirement that there had to be more of an understanding a divorce might result in a financial claim. He argued this set the test for capacity at far too high a level.

An additional point related to the compensation award, which would have been set to cover P’s needs alone. If his marriage broke down and his wife made a financial claim, the scope of that claim would be “extremely limited”. In the books, he added, numerous authorities emphasised personal injury awards were “near immunised” from financial claim. If his wife did put forward a claim, this would be limited to alleviating serious financial hardship and no more than this.

The deputy’s application was dismissed and the court granted P permission to marry his fiancée. The judge also suggested to P that he add a codicil to his will ensuring it survived his marriage so it would still be effective if he and his wife split up.


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