Dispute Resolution News
Successful challenge to home made Will
Successful challenge to home made Will demonstrates the extent to which the Court must consider evidence of surrounding circumstances before making a decision: Devas et al v Mackay [2009] All ER (D) 09 (Aug)
In the recent case of Devas et al v Mackay [2009] All ER (D) 09 (Aug) Mrs Devas, an elderly widow, was isolated from her family by her carer, Zandra Mackay. Mrs Devas suffered from vascular dementia and profound physical disabilities as the result of numerous strokes.
Mrs Mackay and Mrs Devas' secretary, Mrs Atkinson, withdrew large sums of cash from Mrs Devas' bank account and wrote large cheques in favour of themselves. A police investigation into the depletion of Mrs Devas' assets was ongoing at the time of the trial.
Mrs Mackay and Mrs Atkinson drafted a homemade will on behalf of Mrs Devas which was executed on 1 November 2005 and named Mrs Mackay's son as the executor and sole beneficiary. Mrs Devas' previous will had left the bulk of her estate to her children and grandchildren and had been drafted with the help of her usual solicitor and financial advisor.
This will was found to be invalid first, because Mrs Devas did not have mental capacity and second, due to the suspicious circumstances surrounding its drafting and execution.
A testator must have the mental capacity to make a will.
The testator must also have knowledge and approval of the contents of the will in order for it to be valid. In relation to want of knowledge and approval, the judge referred with approval to the doctrine of "the righteousness of the transaction" which is outlined in Fuller v Strum [2002] 1 WLR 1097.
If the suspicion of the court is aroused in any way about the circumstances of the drafting of a will:
"...it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly"...
"All the relevant circumstances will be scrutinised by the court which will be "vigilant and jealous" in examining the evidence in support of the will".
The judge also referred to In Re Rowinska, Wyniczenko v Plucinska-Surowka [2006] WLTR 487 where the judge took particular account of the conduct of the beneficiary after the execution of the disputed will.
In Mrs Devas' case, there was clear medical evidence that Mrs Devas did not have testamentary capacity on 1 November 2005.
In relation to want of knowledge and approval, there were also a number of suspicious circumstances:
i) The will was home made and no professional advice was sought;
ii) The will contained a spelling mistake and used language which would not have been used by the testator;
iii) The will contained untrue statements about the testator's family which were uncharacteristic of her;
iv) The will contained a radical change in dispositions made without a rational explanation;
v) The sole beneficiary was barely known to the testator;
vi) The sole beneficiary was the son of the testator's primary carer, who had complete control over her;
vii) The circumstances in which the sole beneficiary of the will was introduced to the testator were unclear;
viii) The sole beneficiary's mother had increased the testator's isolation from family and friends prior to the signing of the will;
ix) The will was drafted by Mrs Devas' secretary who was the daughter of the alternative executrix;
x) The will was witnessed by the daughter of the alternative executrix and the mother of the sole beneficiary;
xi) The two witnesses of the will appear to have benefited from large unexplained gifts which were the subject of a police investigation;
xii) The fact that Mrs Devas did not have testamentary capacity also impacts on whether she had knowledge and approval of the contents of the will;
xiii) Medical evidence also showed that it would not have been possible for Mrs Devas to dictate the will to her secretary due to her physical and mental condition as the secretary had claimed;
xiv) There was no evidence that the contents of the will were either read or explained to Mrs Devas;
xv) Neither the sole beneficiary, his mother or Mrs Devas' secretary informed the Mrs Devas' family that she was dying; they misled the GP about the family and were obstructive after the death;
xvi) Mrs Devas' secretary suggested that she would be willing to destroy the disputed will;
xvii) The day books relating to Mrs Devas' care could not be produced; and
xviii) The sole beneficiary had sold some of Mrs Devas' property despite an undertaking to the contrary.
These suspicions were not displaced by any evidence introduced by the defendant. It was therefore found that Mrs Devas did not know or approve of the contents of her last Will and the claim to have Mrs Devas' previous Will admitted to probate was granted. However, by this time, her assets had been depleted to a fraction of their previous value.
The case does demonstrate the difficulties of challenging a will following the death of the testator, even where the testator's vulnerability may be considered to be obvious.
If you are concerned about a situation where an elderly person is vulnerable to financial abuse, you may wish to consult a specialist Court of Protection solicitor who will be able to suggest the appropriate legal methods of protecting them.
If the extent of financial abuse only becomes clear after a person has died, a specialist Dispute Resolution solicitor may be able to trace assets which have been dissipated and restore them to the rightful beneficiaries of the estate.
For more information about Court of Protection matters please contact Cat Oakes. For further information about Dispute Resolution please contact Veronica Howley.
Angela Martin
This article provides a summary of a recent case/change in law/news item. It is intended for general information purposes only and is not to be relied upon. It does not constitute legal advice and should not be treated under any circumstances as a substitute for legal advice. Lees Solicitors LLP does not accept any responsibility for any loss that may arise from reliance upon the information contained within this article. The copyright in this article is owned by Lees Solicitors LLP and permission must be sought before reproduction or publishing.
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