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Mentally impaired people ‘must understand financial consequences of marriage’

People suffering from mental impairment must understand the financial consequences of marriage, a Judge has ruled.

The case concerned a man called ‘DMM’, who lives in the south of England. He is a retired insurance broker in his 80s, with three adult daughters. He is divorced from their mother. For some 20 years he has lived with another lady friend, now in her 70s, who was referred to as ‘SD’ in the judgements relating to the case.

In 2013 DMM signed a will giving his partner two thirds of his pension, a large financial legacy and the right to live in his house for two years after his death. The remainder of his estate was to be divided between his daughters.

He had previously given one of his daughters, ‘EJ’, power of attorney over his financial affairs and property, and later extended her remit to health and personal welfare as well.

DMM now has Alzheimer’s Disease. SD had her partner assessed by a psychiatrist, to try and determine his capacity to change his power of attorney arrangements and to marry. The psychiatrist concluded that DMM was no longer capable of changing his power of attorney arrangements but was able to consent to marriage.

EJ objected to the idea of her father marrying SD and tried to prevent this happening. She hired an independent mental capacity assessor to re-examine her father and they concluded that DMM did not have the capacity to marry either.

The daughter than launched legal proceedings, as SD, acting as her father’s attorney.

Sitting in the Court of Protection at Bristol, His Honour Judge Nicholas Marston explained that during the proceedings DMM had been examined a third time by psychiatrist Dr Hugh Series.

The key issue was whether DMM understood that marriage to SD would invalidate his existing will under the law, the Judge continued.

“In his main report Dr Series concluded that DMM had the capacity to marry because he did understand his will would be revoked and the financial position of his 3 daughters would be effected by that and his marriage.  He was clear that DMM knew the will would be cancelled, that he might not be able to make a new will, that the rules would therefore produce a different result to the old will and his children might receive less and the First Respondent [his partner] more.”

EJ wanted to have her father examined a fourth time, claiming the Dr Series had been put under undue pressure by SD. But, said the Judge:

“After reading the answers to the questions set out in the addendum it was clear to me that no possible allegations of undue influence on Dr Series were sustainable…”

He expressed the hope that:

“…the First Respondent [SD] and DMM’s 3 daughters, the four people who are closest to DMM, find a way of moving forward together after this very bitter dispute.  DMM suffers from a degenerative disease and he is going to need the help of all those who love him in the very near future.”

You can read the full ruling here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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