Earlier this week the Daily Mail reported on a case in which an elderly lady had married her live-in carer and the implications of this meant her two children had lost out on significant inheritance.
Joan Blass, 91, was diagnosed with vascular dementia in 2011. The same year she met Mr Folan, 70, who struck up a conversation as he walked passed her house. The two became friendly and Mr Folan ended up moving in with Ms Blass a month later. In court documents it was stated that he resided at the property as her friend and live-in carer.
The pair married at their local registry office in 2015 with the only witnesses to the marriage being Mr Folan's son and members of his pub quiz team.
Despite being married to Mr Folan, Ms Blass continued to wear her wedding ring from her previous marriage to her late husband Ron and her children claim she could not recall who Mr Folan was or why he was living in her house. Her children had no knowledge of the marriage, even though Ms Blass' daughter lived in the house next door.
Ms Blass died in 2016 aged 91. It was not until she passed away that her two children learnt of their mother's marriage to Mr Folan and in turn discovered that this meant they would no longer benefit from their mother's estate.
In her Will, Ms Blass had left her estate to her two children, but as a consequence of her marriage to Mr Folan this Will was revoked and the result was that Mr Folan inherited Ms Blass' estate including her property.
The effects of marriage and civil partnerships
Marriage and civil partnerships normally have the effect of revoking (voiding) any previous Wills or Codicils you have made, even if this is not your intention. This means that if you do not make a new Will then when you die your estate will be distributed in accordance with Intestacy Rules.
The only way to avoid this is by showing in your Will that you intend to marry or enter into a civil partnership with that person and do not intend for the marriage or civil partnership to revoke the Will. Unsurprisingly the person referred to in the Will must be the same person you subsequently marry or enter into a civil partnership with.
As Ms Blass did not amend or review her Will prior to the marriage, or at any point afterwards, the effect on her Will was that it was revoked. As her Will was no longer valid when she passed away her estate was distributed in accordance with the Intestacy Rules, meaning her spouse, Mr Folan, benefited.
Capacity is not black and white and in most cases, especially when someone is living with dementia, can be fluctuating.
There are specific tests for establishing capacity, and these vary from the question being asked. This means that Ms Blass may not have had capacity to deal with her finances, but may have had capacity to marry Mr Folan. Her children do not believe she had capacity to give her consent to marry Mr Folan and claimed that it was a forced marriage, however the court did not agree with this claim as there was not sufficient evidence.
This case also raises the question of what can be done if someone made a Will previously, but now lacks capacity to change it? Or was coerced into making a Will by a family member/friend which was not in line with their wishes and feelings?
It is possible to make a new Will, or make changes to an existing Will, even when you no longer have capacity. This is known as a Statutory Will, and requires the approval of the Court of Protection.
A qualifying person can make an application to the court to seek approval for a new Will or a Codicil (which has the effect of making specific changes to an existing Will). The court will consider if the changes are in the best interests of the person who lacks capacity.
An application for a Statutory Will can be made in circumstances where someone who lacks capacity to amend their Will has been the subject of financial abuse by the very people named in the Will as beneficiaries or executors. An application can also be made in cases where the wishes and feelings of the person have changed, so perhaps there is someone who has cared for them in later years of their life and if the person were able to make a Will themselves they would want to benefit them in some way. It may be that the person has suffered a brain injury and did not make a Will prior to the injury, but has since received a sizeable compensation settlement. There are of course many more scenarios where it may be appropriate to consider a Statutory Will application.
The Official Solicitor is appointed in all cases to look at the changes from the perspective of the person who lacks capacity, and will do so looking at their previous wishes and feelings in prior Wills/Codicils or any other documents, as well as statements from those who may be making or challenging the application for the Statutory Will.
The person making the application for a Statutory Will must name those who will be disadvantaged by any changes in the application, this includes cases where there may not be an existing Will and certain categories of people may have benefitted under Intestacy Rules, but would not do if the new Will/Codicil is authorised by the court.
The application for a Statutory Will can be costly if it is contested by others. The general rule is that everyone's costs (those making the application, those challenging it and the costs of the Official Solicitor) are awarded from the estate of the person who lacks capacity. The exception to this is where the court considers that a party has acted with bad conduct or unreasonably.
The importance of updating/reviewing your Will
The case of Ms Blass highlights the importance of reviewing your Will after life changing events, or at least every 5 years. It also highlights the little known area of Statutory Wills and how an application can be made to ensure that the right people benefit from a person's estate, even after they may have lost capacity.
We have a dedicated team of solicitors who specialise in Court of Protection matters. We have comprehensive understanding of Deputyship applications, Statutory Will applications and the various obligations/fiduciary duties imposed on Attorneys/Deputies.
At Clapham & Collinge Solicitors, we offer a free Will review, with appointments available at our North Walsham and Sheringham offices. If you are considering making a Will or would like a member of our team to have a look at your current Will[s] and advise you about any changes you should consider making, please contact our Client Relations Team to book an appointment by calling 01603 693500 or email us using the 'Make an enquiry' form.
To find out more or discuss your individual requirements in further detail, our planning for later life team will be delighted to help. Contact us today on 01603 693500 or email us using 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.