Later Life Marriage and Estate Planning
We are now living longer which, in turn, means later-life marriage is more common than
it was when the law governing marriage and wills first evolved. As you grow older, it is
important to consider issues of capacity in respect of marriage and estate planning to
ensure that your estate passes to your intended beneficiaries.
A reported case illustrates the importance of considering your own and your loved ones’
capacity.
An elderly gentleman, who had married four times, married a final time to a bride who
was substantially younger than him. The bride was unfortunately deported on the day
of the marriage and the family, on behalf of the elderly gentleman and without legal
advice, attempted to annul the marriage on the basis that the marriage had not been
consummated. One reason that the family wanted to annul the marriage was to protect
their potential inheritance as they would benefit under the Will.
The family’s attempt at annulling the marriage failed and the family took no further steps.
The gentleman died two years later and his estate passed to his wife on intestacy.
The reason his estate passed to his wife on intestacy was because there is a law which
states that marriage revokes any previous will. His marriage, which was valid, revoked the
Will he had made in favour of his family .
By the time of his marriage, the gentleman had lost the capacity to write a new Will,
but he had not lost the capacity to marry. The test for capacity to marry is significantly
lower than the capacity to give away one’s worldly possessions , known as ‘testamentary
capacity’.
Had the family taken legal advice during the gentleman’s lifetime, an option available is to
seek the assistance of the Court of Protection. The Court of Protection has the power to
make statutory Wills, which may have meant that the family members were included as
beneficiaries of the gentleman’s estate.
There are