Judge: HHJ Marston QC
Citation:  EWCOP 32
Citation:  EWCOP 33
HHJ Marston QC has answered a question as to the salient information relevant to the capacity to marry that, somewhat surprisingly, had not previously been answered. The case concerned a retired insurance broker, DMM with Alzheimer’s disease. He had once been married, ending in divorce, and had then cohabited with a woman, SD, for 20 years. He had made a will in 2013 and previously executed an EPA appointing EJ, one of his adult daughters from his marriage, as attorney; in 2013, he executed a health and welfare LPA in EJ’s favour. It is implicit from the judgment that plans must have been afoot for DMM and SD to marry, because EJ brought an application under Part 4A Family Law Act 1996; these were transferred to the Court of Protection, with an interim injunction made to prevent the proposed marriage. The case was listed for a preliminary hearing before HHJ Marston QC to decide the preliminary issue as to whether the:
legal test for whether a person has capacity to marry includes a requirement that the person should be able to understand, retain, use and weigh information as to the reasonably foreseeable financial consequences of a marriage, including that the marriage would automatically revoke the person’s will.
It was agreed that the effect of the marriage of DMM to SD would automatically revoke the will that he previously made. If SD lacked the capacity to make a new will (or a statutory will was not made on his behalf), the effect of revocation combined with the effect of the statutory intestacy provisions would mean his children would receive less and SD more.
The evidence was that DMM (who was not at that stage a party or represented in any way before the court) might not have the capacity to understand the effect of the remarriage upon his will. The question was therefore whether, as a matter of law, such understanding was required as a component part of the test.
HHJ Marston QC reviewed the authorities and held, at paragraph 7, that:
It is clear to me that DMM has to be able to understand the information relevant to a decision (to marry) and that information includes information about the reasonably foreseeable consequences of deciding one way or the other. The effect of the marriage making the will invalid is not just a reasonably foreseeable consequence of marriage, it’s a certain consequence of marriage which will have financial consequences to the parties. Is a financial effect on the parties relevant to capacity to marry? In London Borough of Southwark v KA  EWCOP 20 Parker J said “P must understand the duties and responsibilities that normally attached to marriage, including that there may be financial consequences and that spouses have a particular status and connection with each other.” She also made it quite clear that this did not mean for example that you had to understand financial remedy law before you got married. She said “the test for capacity to marry is not high or complex. The degree of understanding of the relevant information is not sophisticated and has been described as rudimentary. I must not set the test too high.” One does not need a refined analysis as the President said [in Sheffield CC v E and another  EWHC 2808 (Fam)]. There is also quite clearly a policy issue involved here, the test must not be set too high because that would be an unfair, unnecessary and discriminatory bar against those with capacity issues potentially denying them that which all the rest of us enjoy if we choose, a married life.
HHJ Marston QC noted that there had been discussion in the reported cases as to whether it was necessary to understand that a reasonable foreseeable consequence of marriage is that your financial position might be affected by marriage, particularly if it failed and there were financial remedy proceedings. He noted “importing that into capacity to marry is setting too high a standard, too refined an analysis, asking to take too many hypothetical situations into consideration.” However, he continued (at paragraph 10):
that seems to me to be very different from the fact that your will is going to be set aside if you marry. That is a statement of fact not a hypothetical situation, you don’t have to know what the situation will be if you die intestate, all you need to know is “What you wanted to happen on 11 December 2013 cannot happen because your will is invalid because of the marriage”. If you cannot understand that how are you said to be able to understand, retain, use and weigh information as to the reasonably foreseeable consequences of the marriage? It is said in Miss Bond’s argument that this is focussing on the testamentary consequences of the marriage, in my view it’s not, it’s focussing on the factual consequences of marriage. I therefore find that the fact that a second marriage revokes the will is information that a person should be able to understand, retain, use and weigh to have capacity to marry.
Matters then proceeded, recorded in a second judgment. DMM was then joined as a party, represented by the Official Solicitor. Dr Hugh Series was instructed to report upon DMM’s capacity in light of the determination set out above as to the information relevant to the test. He was clear that DMM did have this capacity, clearly retained and understanding the fact that the will would be revoked, he might not be able to make a new one, and that, in consequence, his children might receive less and SD more. HHJ Marston QC therefore made a declaration to the effect that DMM had the capacity to marry, stayed for a short period to enable an application for permission to appeal to the Court of Appeal to be made – an application which did not come to pass.
On one view, it would have been helpful had the Court of Appeal been asked to consider the question before HHJ Marston QC, as it would have been useful to have an appellate level decision on the information relevant to the marriage test (a previous opportunity in A, B and C v X & Z, also on the relevance of financial consequences. not having come to pass on the death of P).
However, it is perhaps not surprising that the case did not progress further. Although it is a little odd that P was not joined to the determination of such important a preliminary issue (and could, in principle, have argued that HHJ Marston QC was wrong even when he was joined), the conclusion reached on the legal issue would seem to be unimpeachable because of the inexorable consequences of marriage upon a will. Further, HHJ Marston QC was astute to formulate the necessary information at as low a level as sensibly possible to outline those consequences. Although the report of the evidence of Dr Series was of short compass, it would appear clear that it would have been all but unassailable on appeal.