We are all familiar with the archetypal stereotype of the beautiful young woman who beguiles a rich elderly man and marries him in his twilight years. There have been notorious “black widows” whose husbands have met an unexpectedly quick death after their marriage and the increasing incidence of online overseas brides who marry much older husbands and quite often seek a divorce after their Australian residency has been confirmed.
It is not confined to elderly men marrying younger woman. There is also the case of elderly woman being befriended by much younger men and marrying at a late stage in life. There are examples of famous elderly women marrying much younger men such as Joan Collins and Elizabeth Taylor but these ladies certainly had their wits about them and knew what they were doing. It is a different matter when the elderly partner has capacity issues as a result of dementia and/or ill health.
We have all experienced or know of cases involving ‘suspicious’ marriages that occur with wealthy elderly people and much younger partners. Most families have a story of an elderly parent or grandparent who is befriended in their later years by a much younger person and in many cases where that person is or becomes the carer for the elderly person. As the elderly person becomes physically frail and in need of an increasing amount of help and assistance in general day to day living activities, the closer the carer becomes to the elderly person. Family members are often surprised to learn their elderly relation is about to get married, or in many cases, they only find out afterwards!
WARNING! MARRIAGE REVOKES YOUR EXISTING WILL!
Most people do not realise the impact of a marriage upon someone’s overall legal affairs. Unless a Will is expressed to be in contemplation of marriage, if the person who has made the Will gets married, the Will is revoked and the Will maker dies intestate if they do not make a new Will. If the Will maker does not have any children, the surviving spouse inherits “the whole of the estate of the deceased”. Although there are different thresholds and legislation applying in Qld and NSW, if the deceased has children, the surviving spouse receives a designated monetary amount ($150,000 in Qld and $350,000 in NSW) plus differing shares of the balance of the estate with the surviving children of the deceased. This outcome can be in many cases the exact opposite of what the deceased person had in their previous Will before the marriage.
There have also been cases where there is a huge question mark over whether the elderly person actually has the mental capacity to fully understand the legal consequences of a marriage. Where an elderly person is suffering from dementia and/or has a debilitating medical condition, it is sometimes difficult to make an accurate assessment as to whether the elderly person truly understands the impact of the marriage and how this will affect their families. There have not been very many legal cases concerning a challenge to someone getting married but in cases that have been determined by Courts, it appears that providing the person to be married has an appreciation of the general effect of the marriage ceremony, they will be deemed to have sufficient capacity to get married. That does not necessarily mean that they need to fully understand all of the legal ramifications that the marriage may cause (such as the marriage revoking their Will).
It is accepted that the test for appropriate mental capacity at law to get married is substantially less than that required to make a valid Will. Making a Will has a slightly lower standard that is required than making an Enduring Power of Attorney. It is conceivable that someone could have the capacity to get married and yet not have the capacity to make a Will or an Enduring Power of Attorney. Likewise a person could have sufficient capacity to make a Will and yet not sufficient to make an Enduring Power of Attorney. It all depends upon the circumstances of each case.
MARRIAGE CAN REVOKE YOUR ENDURING POWER OF ATTORNEY AND ENDURING GUARDIAN!
A marriage not only revokes a Will but can also revoke an Enduring Power of Attorney or Enduring Guardian. Again the laws are different between Qld and NSW but, generally speaking, a marriage revokes Wills, Enduring Powers of Attorney and Enduring Guardians (in NSW an Enduring Power of Attorney survives a marriage). The most prudent thing to do when you marry is to obtain legal advice and make a fresh Will as well as a new Enduring Power of Attorney (and an Enduring Guardian in NSW). If an elderly person marries, and there are mental capacity issues due to illness and/or infirmity, making a new Will can be problematic. Sometimes an experienced estate planning lawyer will need to carefully take all of these issues into consideration when providing legal advice to the elderly person and getting them to fully understand the legal implications of the marriage. Even though an elderly person is suffering from some form of dementia and is also frail due to a medical condition, it may still be that they have sufficient capacity to make minor changes to their existing Will or alternatively, a simple amendment to make the Will valid in contemplation of marriage. There are various avenues open to ensure that the elderly person’s wishes are properly taken into account and that both the new spouse and family of the elderly person are catered for.
There is no easy answer to making sure that all parties will be happy with the outcome in these circumstances but the most important consideration is for the elderly person and their family to ensure that they receive proper legal advice from an experienced legal practitioner in estate planning. Unless a solicitor regularly practices in this area, it could be that they do not have sufficient knowledge and experience to provide advice in this crucial area.
In many cases, if the correct legal advice is not provided, the matters more often than not end up being dealt with in the Supreme Court which can cost the estate hundreds of thousands of dollars. In a recent case involving an elderly man who made a fresh Will leaving his entire estate to his de facto partner, the Court held that he did not have the requisite mental capacity to make the Will even though this was done by a solicitor. The Judge used the case as an opportunity to provide a warning to the legal profession to ensure that they were experienced in this area and carefully investigated the mental capacity of elderly clients. A link to the case is here Ryan v Dalton  NSWSC 1007.
You are welcome to contact our office with any enquiries concerning estate planning advice. Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email firstname.lastname@example.org or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers.
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