CONTENTIOUS PROBATE

A lesson in the effect of mental capacity and remarriage on wills

A new marriage automatically invalidates a pre-existing will, which can cause heartache for loved ones if not reviewed properly.

The latest episode in the ongoing saga of Inheritance Wars: Who gets the money presents a poignant story of a daughter who loses her mother and all her inheritance after a mystery man enters their lives.

Joan and Ronnie met at university and were married in 1950. They had two children together, Daphne and Michael. They were a close-knit and loving family.

In 1999 Daphne got married. Wanting to stay close to her parents, Daphne and her husband built a new house in the grounds of Joan and Ronnie’s garden.

By 2007, Ronnie’s health takes a turn due to complications relating to his diabetes. Following a year in a nursing home, he passes away in 2008. Fortunately, both Joan and Ronnie had carefully drafted wills years before. On Ronnie’s death, his estate seamlessly passed to Joan, granting her ownership of his share of their joint assets, including the family home.

However, the loss of Ronnie leaves Joan lonely, even with Daphne living nearby. His absence seems to trigger the onset of Joan’s dementia and she is formally diagnosed with vascular dementia in 2011. Over the following years, Joan endures a series of strokes, further deteriorating her health.

One day, Daphne visited Joan (as she did most days) and she noticed a stranger’s belongings in the house. Puzzled and concerned, Daphne asked Joan about the man’s identity, only to learn that Joan simply met him at the gate and invited him in for coffee. Joan herself does not seem to know who the man is and asked whether Daphne had brought him for her, calling him ‘Laddo’ as she does not know his name.

Laddo, considerably younger than the 87-year-old Joan, gradually takes over her residence, even removing her from own bedroom and claiming it for himself. Daphne noticed Joan’s communication declining, and she began to withdraw into herself. Eventually, in 2014 Laddo stops talking to Daphne, avoids eye contact, and starts to make it increasingly challenging for Joan to contact her.

Joan passed away 2016. Following her death, Daphne received an unexpected call from the GP asking whether she knew that Joan was married. The GP had just received a copy of the marriage certificate but was concerned as Daphne was still listed as Joan’s next of kin.

The Wills Act 1837 dictates that marriage invalidates any pre-existing wills. This meant that the will created by Joan at the same time as Ronnie was invalid and her estate would pass as per the intestacy rules. Joan’s estate would now belong to her surviving spouse, Laddo. Daphne and Michael would not receive anything.

Daphne sought to recover her mother’s sentimental possessions, including letters written by Daphne’s grandfather in the trenches to her grandmother, but Laddo refused to grant her access to the house. Laddo, as Joan’s surviving widower and the person entitled to her estate, also had the power to arrange the burial, his plans for which went against Joan’s and the families’ wishes, who wanted her cremated and placed with Ronnie.

Daphne issued a claim in the High Court to take control of the burial. Daphne argued that Laddo only had the right to the burial because he had married Joan in secret, a marriage which Daphne said Joan did not have the capacity to enter into and which was predatory in nature.

Laddo gave evidence to the contrary stating that he loved Joan and wanted to bury her in a place that was special to them. He said that as her loving husband he should decide where she is buried.

The Court found in Laddo’s favour, the testamentary capacity required to marry being extremely low. As a result of her lost claim, Daphne was ordered to pay the costs of the case and had to sell her home.

Following the Court case, Joan was buried in a cemetery with no headstone and no funeral service much to Daphne’s heartbreak.

This instalment serves as a compelling reminder about the significance of maintaining an updated and valid will and ensuring to revise it following a new marriage. It also underscores the crucial role of mental capacity in the context of inheritance matters, emphasising the need for vigilance in the wellbeing of vulnerable loved ones to safeguard them from exploitation.

Daphne has campaigned relentlessly for a change in the law following her ordeal so that a will is not automatically invalidated on marriage. We will wait to see whether this comes to fruition given the rise in predatory marriages.

About the authors


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Cathryn Culverhouse

Partner

Expert in a wide range of complex contentious probate disputes including 1975 Act claims, validity disputes and undue influence claims.

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