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Marriage, a Trap for the Deceased’s Children

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss why a parent’s marriage can leave his/her children with no inheritance and no options

What happens to the estate of a parent once he or she marries?

Once again, we are discussing the “rights” of children to the estate or a share of the estate of a parent in England and Wales. We have previously discussed this in other contexts – see for instance:

In the arena of Will dispute or Will contest claims it is not accurate to state that a child has no rights. A child (whether a minor or adult) has the right to inherit from his/her parent in somewhat limited circumstances when the parent died with no Will (what we call an “intestacy” or “intestate estate”) and was married at the time, but outright (albeit shared with any other children of the deceased) where there was no wife/husband and no Will. The problems for the deceased’s children usually only start if their parent(s) decide to make a Will as the parent has complete freedom to do so and can leave his/her estate as they see fit (to including completely disinheriting their children).

So what is the position of a child whose parent marries?

In football terms the rights of the children are relegated whereas the rights of the wife/husband of the parent are promoted and in fact the new wife/husband has rights of maintenance which are protected. So for instance:

• On marriage all of the parent’s previous Wills are automatically revoked and therefore no longer exist in law – section 18 Wills Act 1837

• Under the rules of intestacy, the surviving husband or wife takes the biggest shovel to the estate: The husband, wife or civil partner keeps all the assets (including property), up to £270,000, and all the personal possessions, whatever their value. The remainder of the estate will be shared as follows: • the husband, wife or civil partner gets an absolute interest in half of the remainder • the other half is then divided equally between the surviving children If a son or daughter (or other child where the deceased had a parental role) has already died, their children will inherit in their place.

• The surviving husband or wife can even challenge the rules of intestacy or the terms of a “disadvantageous” Will where he/she has not been sufficiently provided for by virtue of the Inheritance (Provision for Family and Dependants) Act 1975 in relation to which what is reasonable provision for them is measured (to an extent) against what they would otherwise have received on divorce – as per section 3(2) Inheritance (Provision for Family and Dependants) Act 1975:

How do I stop mum or dad remarrying when they lack capacity or have reduced mental capacity?

The answer is you probably can’t and on a practical level, if you try to do so during the lifetime of the parent in particular, you are more likely to push them into disinheriting you anyway. In brief, very little capacity is required to marry and ironically (because marriage revokes all previous Wills) probably much less than is required to make a Will.

These issues were considered in two relatively recent cases:

DMM, Re (2017) EWCOP 32 26 July 2017

Mundell v Name (2019) EWCOP 50 18 September 2019

What follows, is a quote from Mundell by the prescribing Judge, Mr Justice Mostyn, which is instructive:

  1. I, myself, would adhere to her initial description of the level of understanding as being rudimentary and, in my judgment, what Parker J here says in paragraph 37 is a mirror over 100 years after the decision of Durham v Durham. In paragraphs 76 to 77, Parker J said this:
    “The test for capacity to marry is also a simple one: a) Marriage is status specific not person specific. b) The wisdom of the marriage is irrelevant. c) P must understand the broad nature of the marriage contract. d) P must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other. e) The essence of marriage is for two people to live together and … love one another. f) P must not lack capacity to enter into sexual relations.

    The decision is about capacity and not welfare. Thus I do not take into account aspects of his decision making which affect the consequence of his decision making, so long as they do not affect the decision making process in itself.”
  2. For the reasons I have given earlier, I do not accept that the essence of marriage is for two people to live together and to love one another, although I would accept that that is how people would normally expect their married life to commence and to be conducted. The fact that it may be empirically the norm does not mean, of course, that they are essential features of the marriage contract.
  3. (name 1) gave evidence before me. He was asked what his understanding of the marriage contract was and he replied by referring to the words of the marriage vows in the Anglican prayer book; that he perceived it as being a relationship that would endure in sickness and in health; and then he described how the obligations of marriage would require aid to the other spouse if he or she fell sick. He said that it involved a commitment to each other. The final chapter, he said, is becoming a family.
  4. In relation to the financial consequences, he said he understood that it would mean that the finances on divorce would probably be halved but he accepted that, if there were to be a breakdown of the marriage and a divorce, that he would go to a lawyer and would accept the advice of a lawyer. He stated that he would probably have to go and live with friends if the marriage broke down and he accepted that he was not sure how a divorce would impact on his financial ability to care for himself.
  5. In her decision of the London Borough of Southwark v KA, Parker J said, at paragraph 79:
    “It is not relevant to his understanding of marriage that he does not understand … how financial remedy law and procedure works and the principles are applied. The fact that he might lack litigation capacity in respect of financial remedy litigation does not mean that he lacks capacity to marry.”
  6. In my judgment, it would be inappropriate and, indeed, arguably dangerous to introduce into the test for capacity to marry a requirement that there should be anything more than a knowledge that divorce may bring about a financial claim. This, (name 1) plainly understands. However, what the extent of that claim should be is a mystery to even the most sophisticated and well educated of lay, as well as legal, persons and to suggest that there is needed an appreciation of what the result of a financial remedy claim might be, would be to set the test for capacity far too high.

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