A deathbed marriage

A parent’s remarriage can occasionally give rise to disagreements and hostility within a family. But what if that remarriage leads to the new spouse benefiting under a Will, and the children being disinherited? This was the scenario in the recent case of Wharton v Bancroft and Others [2011] EWHC 3250 which concerned a substantial estate of around £4 million. Mr Wharton had been diagnosed with cancer and was told he did not have long to live. He was discharged from hospital and 6 days later made a new Will leaving everything to his partner of 32 years, to the exclusion of his 3 daughters. Later that day the couple married at home.

After his death the daughters brought a challenge against the Will. They claimed that he did not make his wishes sufficiently clear, he was unable to properly understand the meaning of the Will when it was read back to him and that he had been unduly influenced by his partner. They also originally tried to claim that he lacked the capacity to make the Will but later withdrew this argument. The judge found that, although the deceased had been terminally ill, he had been capable of making and approving the contents of the simple Will that he had made. He held that ascertions previously made to his daughters that he would provide for them were not particularly compelling and had no consistent pattern. His previous Wills were similarly varied and inconsistent.

The Court found that there was no evidence that Mr Wharton had been coerced into making his Will or that undue influence had occurred. The fact that the Solicitor had not got a medical attendant to certify that Mr Wharton had the capacity to make a Will was not an issue in this case, the Solicitor was entitled to rely on his own assessment which had been accepted as correct. Although Mr Wharton was terminally ill, the judge said that he was a capable testator. The Court did express disappointment that the parties had not been able to come to an out of court settlement, which would have been of benefit to all concerned.