Daughter attempts to prevent father from marrying his long-term partner due to Alzheimer’s disease
An interesting English case has recently been reported regarding a man in his mid-80s suffering from Alzheimer’s disease seeking to marry his long-term partner. The couple had lived together for over 20 years. The man had three adult daughters from a previous marriage, who were against him marrying again.
In 2013, the man had signed a will leaving his partner two-thirds of his pension, a £300,000 cash sum and the right to continue staying in his home for 2 years after he died. His daughters were to inherit the remainder of his substantial estate, which was estimated to be over £1,500,000.
In 2016, the man wished to marry his partner. He had been diagnosed with Alzheimer’s at that time. Due to English laws, the marriage would have automatically revoked the Will, and he was unlikely to have capacity to prepare a new Will. This meant that his new wife would stand to inherit most of the estate. His daughter applied to the Court to stop the marriage on the basis that her father lacked capacity to get married.
After various medical reports and hearings, it was determined that the man had capacity to marry, and he understood that this would result in his daughters receiving less of his estate.
This is a very interesting and complex case which highlights the need to keep wills up-to-date and reflective of your wishes.
It is also important to remember that English law is different to Scots law in many ways – this case would likely have had a different outcome in Scotland.
In Scotland, a marriage does not automatically revoke a Will. Instead, at the time of marriage, the partner would have become entitled to claim Legal Rights from the estate. This allows a surviving spouse to claim one-third of the net moveable estate (or one-half of the net moveable estate if there are no children). In the above case, the spouse would have had to decide if she wanted to make a claim for Legal Rights, or accept what was left to her in the Will. If they had decided not to get married, and there was no Will, his partner would have required to make a claim to the Court for payment out of the estate, as there would be no automatic entitlement. This Court claim is subject to strict time limits, as a cohabitant only has six months from the date of death to make an application to the Court. The Court then has a very wide discretion as to what (if anything) should be awarded to the cohabitant from the estate.
We recommend that clients regularly review their will, particularly upon major life events such as a marriage, or in the event that there are changes to their health. We can ensure that your wishes are accurately reflected in your will, and provide you with clear advice of any potential legal implications. If you wish to review your will, or have yet to prepare a will, you can get in touch with one of our specialist solicitors on 0800 089 1331 who will be happy to assist.
Blog by Amy Wardrop, Solicitor
