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England & Wales: Daughter failed to prevent father marrying again despite dementia

Thursday, 25 January, 2018

The England and Wales Court of Protection has published its judgment in the case of DMM, concerning an elderly man with dementia who desired to marry his long-term cohabitant against the wishes of the daughters of his first marriage.

DMM was married and divorced many years ago, and has three daughters from that marriage. Now in his mid-eighties, he has cohabited with another woman for more than twenty years. In 2013, he executed a will giving her most of his pension, a GBP300,000 cash legacy, and the right to live in his house for two years after his death. His daughters were his residuary beneficiaries and would inherit most of his estate.

In late 2016, DMM announced his intention to marry his cohabitant. At this stage he had Alzheimer's disease. One of his daughters (EJ) then sought and obtained a medical opinion to the effect that DMM did not have mental capacity to marry. His marriage would have a significant adverse effect on her and her sisters' expected inheritance, as it would automatically revoke his will. Moreover, his advancing dementia would probably leave him legally incapable of making a new will after the marriage, so he would die intestate and the daughters would get only the statutory legacies.

His daughter’s initial steps in the marriage registry office and the family courts resulted in a temporary injunction preventing the marriage under the Marriage Act 1949. The case was then referred to the Court of Protection, and was heard in September 2017. Dr Hugh Series, an eminent consultant psychiatrist who specialises in old age, was jointly instructed on DMM's capacity to consent to marriage. His brief was to consider not just DMM's understanding of the strictly personal aspects of marriage, but also the effect on his daughters' finances.

Series testified that DMM did indeed understand that his children might receive less than before and the cohabitant might receive more, and so stated that DMM had the capacity to marry. Marston HHJ accepted this opinion, and made an order to its effect. He refused EJ permission to appeal (Re DMM, 2017 EWCOP 33). It is not known whether or not she has applied for leave directly to the England and Wales Court of Appeal.

Though Marston HHJ gave judgment in the case last October, the full text has only recently become available.