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Recent case highlights need for training on capacity issues

A recent case has highlighted that the level of capacity required to consent to marriage is relatively low, and more could be done to improve understanding, Lodders’ Care & Capacity expert, Sofia Tayton, explains.

The Court of Protection (COP) recently granted a 28-year-old man permission to marry his fiancée following an application by his deputy for a declaration that he lacked capacity to do this.


The recent case involved a 28-year old man who had been injured in a road traffic accident, and subsequently received a compensation award of £1.5million. He was unable to manage his own property and affairs due to lifelong learning difficulties, and the COP appointed a deputy to make financial decisions for him.

Existing will

The man did have a will, leaving his entire estate to his parents. However, he met a woman, and she moved into his house along with her two children.

In 2019, the man announced his intention to marry the woman. The act of marrying revokes existing wills, so he would be intestate unless he made a new will or codicil. His deputy raised concerns.

He advised the man had expressed uncertainty about going ahead with the marriage.  Additionally, a clinician had stated that the man was easily persuaded, and had some difficulty in saying no, leaving him open to exploitation. The deputy felt that the man did not understand that if he were to divorce his wife, she would be able to claim against his estate.

Court of Protection

The COP noted that the man had already made a will. This meant he had testamentary capacity, deemed to have a higher threshold than the capacity needed to marry. They said he did not need to understand financial remedy law in order to enter into the marriage.

The court also said that any claim his wife could potentially bring against his estate was limited by the fact that it is difficult to make a claim against personal injury compensation.

On this basis the court dismissed the deputy’s application, and granted the man permission to marry. It was suggested that he should modify his will so that his parents would still inherit his estate, regardless of the state of his marriage.

Need for increased training

This interesting case highlights that the level of capacity required to consent to marriage is lower than the level of capacity required for other things. It also confirms that personal injury awards are nearly always protected in divorce proceedings. This offers some reassurance for financial deputies who find themselves facing similar circumstances and worrying that a vulnerable client may be being taken advantage of.

We have experienced a number of recent cases where we’ve had to advise vulnerable clients considering marriage in concerning circumstances. The COP is the final arbiter, but it is important to increase general awareness of capacity issues, and offer training on them. Registrars must know how and when to involve specialists and the COP, in cases like this one.

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Diane Wood, V Formation on 07887 794507 or by email

Get in touch...

For more information, please contact Sofia Tayton on 01789 206151, or via email.