Many people will only write one Will in their entire lifetime. They may write it several decades before their passing, but still find, as they reach their final years, that it continues to reflect their wishes.

However, the reality for most of us is that the circumstances and details of our lives, as well as those of the people around us, change over time: we get married, get divorced, get remarried, friends and family become estranged, financial situations change, health alters our constitution and outlook, and our visions for our legacies evolve.

This is why it is so important to ensure we amend our Wills as often as we need to. Whether it is because we wish to change executor, change beneficiaries, set up trusts, provide for charitable legacies, support the future needs of a new partner, or for some other reason; by revisiting a Will and changing its contents we can, with just a few sentences and a familiar flourish of signature, help provide clarity for the future while also reducing the possibility for contentious Wills and inheritance disputes among our loved ones.

The effect of marriage on a Will: a case study

The importance of such planning, especially in cases of remarriage, has recently been underlined by the case of a retired insurance broker in his 80s whose family became embroiled in a perhaps unnecessary, and certainly miserable, dispute regarding his Will and estate.

The man, who suffers from dementia, wanted to get married to his partner of more than two decades.

The man’s most recent Will had been made in 2013. Under the terms of this document, his partner was to receive most of his pension, a £300,000 cash legacy, and the right to live in his house for two years after his death. His three daughters were his residuary beneficiaries and would inherit most of his estate.

However, marriage would revoke this Will, and, under the rules of intestacy, his new wife would become the main beneficiary. So, one of his daughters, who had power of attorney, applied for an injunction to prevent the marriage.

She sought a clinical assessment which established that her father lacked sufficient capacity to get married and, under the Marriage Act 1949, the wedding was halted by the granting of a temporary injunction.

Later, in the Court of Protection, a consultant psychiatrist and the man’s GP testified that although he lacked sufficient mental capacity to make a new Will, he had enough capacity to marry and understood the effect of this marriage on his Will.

Following a third hearing in September 2017, Judge Nicholas Marston ruled that the man should be allowed to marry. He urged the family to “find a way of moving forward together after this very bitter dispute”.

A reminder for us all

While the case is a sad one, it is interesting because it reminds us of the importance of updating a Will in order to reduce stress and contention and also the effect of marriage on even a recently drafted Will.

In the above case, the courts ruled that although the man lacked testamentary capacity (capacity to make a new Will), he had sufficient capacity to enter into a marriage contract that would effectively revoke his Will and permanently change the way his estate would be divided among his loved ones.

This appears to be a contradiction and it is perhaps only a matter of time before the principle is challenged by another Wills and inheritance dispute. The judiciary will soon need to provide suitable guidance and, hopefully, clarification of this contradiction.

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