Important notice

This judgement was delivered in Private. The judge has given leave for this version of the judgement to be published on condition that bracket irrespective of what is contained in the judgement) in any published version of the judgement 

Neutral Citation Number: [2017] EWCOP 33

IN THE COURT OF PROTECTION
Case No: 13095074

IN THE MATTER OF DMM

2 October 2017
Before:

His Honour Judge Nicholas R. Marston

B E T W E E N:-

EJ
Applicant
-and-

SD
First Respondent
-and-

DMM (by his litigation friend, the Official Solicitor)

Second Respondent
Parties:

For Applicant:  Alex Troup, St John's Chambers (Counsel), Kerry Morgan-Gould, Ashfords (Solicitor)

For First Respondent: Abigail Bond, St John's Chambers (Counsel), Holly Mieville-Hawkins, Enable Law (Solicitor)

For Second Respondent: Fenella Morris QC, 39 Essex Chambers (Counsel), Jess Flanagan, Clarke Willmott  (Solicitor)

JUDGMENT

1.	I heard this case on 2nd October 2017, the parties were the Applicant EJ, who is one of three daughters of the Second Respondent DMM, who in turn wants to marry his long time partner SD, the First Respondent.  The issue in the case is does DMM, who it is accepted suffers from Alzheimer's Disease have the capacity to marry.  At a Hearing in early September I heard arguments from the Applicant and the First Respondent on the legal issues raised in this case.  I refer to the written judgment I handed down in that case for a full account of the background to the case and the legal arguments on both sides.  Since then I have made DMM a party and he is now represented by the Official Solicitor as his litigation friend. Dr Hugh Series, an eminent consultant psychiatrist who specialises in old age, has been jointly instructed to report on DMM's capacity to marry.

2.	His report is dated 15/09/2017 (at tab 35 in the bundle).  He has also provided an addendum report answering questions put to him on behalf of the Applicant in particular.  In the original hearing the issue turned on DMM's understanding of the effect of his remarriage on his previous will, it invalidates it, and on the effect this would have on the financial position of the 3 daughters, who under the will split the majority of DMM's estate between them (if he died intestate the majority of the estate goes to the First Respondent).  I held on the basis of the Mental Capacity Act and my understanding of the authorities that the fact that a new marriage revokes the will is "information a person should be able to understand, retain use and weigh to have capacity to marry".

3.	In his main report Dr Series concluded that DMM had the capacity to marry because he did understand his will would be revoked and the financial position of his 3 daughters would be effected by that and his marriage.  He was clear that DMM knew the will would be cancelled, that he might not be able to make a new will, that the rules would therefore produce a different result to the old will and his children might receive less and the First Respondent more.

4.	In further answers to questions in the addendum Dr Series said "It was clear that DMM retained and understood the fact that we were discussing the potential consequences of his marriage to the First Respondent throughout the two hours or so of the interview.  In particular he understood that his children might receive less than before and the First Respondent might receive more".  I am satisfied that on the test that I thought appropriate DMM has at present the capacity to marry.

5.	The Applicant made an application for Dr Series to re-interview DMM in rigorous conditions because it was claimed that undue influence had been brought to bare on DMM or possibly the Doctor by the First Respondent.  After reading the answers to the questions set out in the addendum it was clear to me that no possible allegations of undue influence on Dr Series were sustainable and that was the view of Mr Troup for the Applicant.  I heard full argument on the issue of undue influence on DMM and held that I would not order Dr Series to re-interview DMM but of course the Applicant could explore this issue in cross examination.  I refer to my full oral judgment on this point.

6.	After giving judgment the Applicant asked for permission to appeal which I refused then indicated that they would not wish to contest the case further and wanted 5 days to consider an appeal.  I therefore made an Order that DMM had capacity to marry that comes into effect at the end of Friday, the effect of this is to stay things until then and the Court of Appeal can then be asked to stay pending the consideration of permission to appeal. I then heard brief evidence on the issue of if DMM's condition was likely to deteriorate and if so on what time scale.  A note of what Dr Series said was taken and if it comes to an appeal will be shown to the court in order for there to be an expedited hearing if possible.

7.	I was then asked to set out this short judgment to explain what had happened in the case.  I would like to thank counsel for their very helpful argument in this case.  Finally I would express the hope that the First Respondent and DMM's 3 daughters, the four people who are closest to DMM, find a way of moving forward together after this very bitter dispute.  DMM suffers from a degenerative disease and he is going to need the help of all those who love him in the very near future.