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The Mental Capacity Act 2005 (MCA 2005) provides the legal framework for assessing a person’s mental capacity. The starting point is that a person must be assumed to have capacity to make their own decisions unless it is proved otherwise. A person must not be treated as lacking capacity just because they make unwise decisions.
Capacity is time and issue specific. It is perfectly possible for a person to have capacity in relation to some decisions but lack it for others. Further, a person may have capacity to make decisions about something at certain times of the day, for example in the morning, but lack capacity to decide upon that same issue by the evening. Mental capacity is a gradient. Every effort should be made to encourage and support the person making the decision themselves, even if a lack of capacity is established.
Statutory test for capacity
The statutory test for determining whether someone has mental capacity is set out in the MCA 2005.
A person will lack capacity if they are unable to:
- Understand the information relevant to the decision;
- Retain that information;
- Use or weigh that information as part of the process of making the decision; or
- Communicate that decision (whether by talking, using sign language or any other means).
Whilst this statutory test sets out the basic rules surrounding whether or not a person has capacity, the courts have provided helpful guidance on what kind of information is relevant for different decisions.
Capacity to marry or to enter into a civil partnership
The test for capacity to marry is a simple one. It deliberately requires a lower level of capacity than, for example, capacity to make a Will. This is to enable vulnerable adults to benefit from married life and so as not to create an unfair, unnecessary and indeed discriminatory bar.
A person is deemed to have capacity to marry if they:
- Understand the nature of the marriage contract. It does not require a high degree of intelligence to comprehend;
- Understand the duties and responsibilities normally attached to marriage; and
- Have capacity to consent to sexual relations (because a sexual relationship is generally implicit in marriage).
The test for capacity to marry is act specific. The courts will not consider whether the person understands the implications of marriage to a particular person, or whether it is wise to marry at all. Therefore, the question of whether a person can understand and weigh up the characteristics and suitability of their future spouse (the ‘wisdom’ of marriage) is not a relevant factor.
The Court of Protection has the power to make declarations as to whether or not a person has the required capacity to consent to marriage or a civil partnership. The Court has no jurisdiction to determine whether marriage in general or to a particular person is in a person’s best interests.
Predatory marriages
A predatory marriage involves a vulnerable person (who often suffers from mental capacity issues) being targeted and persuaded to marry someone who is often seeking to exploit them financially. It is a form of financial abuse.
A Will is automatically revoked by marriage or civil partnership, unless made in contemplation of that marriage or civil partnership (section 18(1) Wills Act 1837). As the level of capacity required to make a Will is higher than that needed to marry, someone may be deemed to have capacity to marry but lack capacity to make a new Will after their marriage. The consequences of this can be considerable.
If the vulnerable person dies without a valid Will, the intestacy rules will determine how their estate will be divided. As a result, the ‘predator’ as their spouse would inherit the majority, if not all, of their estate.
Section 12(1)(c) of the Matrimonial Causes Act 1973 provides that, if a marriage has been entered into but one party did not validly consent to it as a result of unsoundness of mind, it is voidable. It is not automatically void from the outset and it would only be cancelled from the point that it is declared void. By that stage, their Will would have already been revoked.
The Law Commission has consulted on whether the law surrounding the automatic revocation of Wills should be reformed, particularly in light of the growing concern surrounding predatory marriages. The Law Commission aims to publish the final Report and draft Bill early next year.
For more information, please contact a member of the Disputed Wills & Estates team.
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