You need legal capacity – for everything you do….

Probably, everyone knows that Queen Victoria was behind the change of wording which created
the “Guilty but Insane” verdict, as an attempted means to deter other malevolent, would-be
assassins. Before that the person would probably have been found “not guilty by reason of
insanity”. The difference might seem, of course, very slight, but the consequences are significant.

And mental capacity appears in almost every aspect of life.

In the recent case of Mundell and Name1 (2019) (Court of Protection) there was a difficult case
concerning a party “P”, aged 28, who wished to get married, but his reduced mental capacity
meant that his decisions had to be made for him by Mr Mundell, his deputy. P had, as a result of
a road traffic accident when he was a refuse collector, lost a leg and was in receipt of significant
damages, said to be around £1,500,000. He had been living with his fiancée for about three
years since she had moved into his house and brought her two children with her. Some years
previously P had made a Will leaving all his estate to his parents. The court knew that marriage
would automatically revoke the Will, and it also knew that this situation should be rectified by
P signing a Codicil to “revive” the Will straight after the marriage. The court needed to balance
whether a person who had previously made a valid will might now not have sufficient capacity
to get married. It was accepted that Mr Mundell was clearly and genuinely acting in P’s best
interests, to protect him, against possible persuasive claims from the other party.

Mr Mundell was specifically troubled by the fact that if they were married, but the marriage
failed, P would possibly be unable to defend himself against substantial claims by his spouse, if
she were to bring any.

But Mostyn J, after summarising the requirements of a marriage, concluded that “ it would be
inappropriate … to introduce … a requirement that there should be anything more than a
knowledge that a divorce may bring about a financial claim”. He went on to say that an attempt
to evaluate the outcome of any possible claim would set the bar too high. As with the matter of
his Will, it should be possible for P to obtain adequate guidance, if the situation arose.

Accordingly the judge ruled that the parties were able to be married. Mr Mundell was comforted
by the fact that any claim would have to be considered by the courts and was told by Mostyn J
(slightly paraphrased): “If this marriage breaks down and a financial claim is made, then
the scope of any claim will be extremely limited, given that the entirety of P’s means derive from
his injury compensation, which will have been calculated by reference to his needs. There are
numerous authorities which emphasise the near-immunity of personal injury awards from a
financial claim. So, the extent of any claim, were it to happen, would be limited, in my opinion
at this point, to alleviating the fiancées financial hardship and no more.

For more advice about mental capacity and the office of Deputy contact John Pulham at:-
Messrs Pulham & Co
Egmere House,
Market Place,
IP17 1AG
Telephone (01728) 602084 or e-mail