Devas & Ors v Mackay

This is a probate action which arises from the death of Mrs Catherine Marden Devas who died on 9 December 2006 aged 83, (“Mrs Devas”). The estate broadly comprises Mrs Devas’ flat, some investments and her collection of books. It is valued at approximately £426,000 net of debts and liabilities.

The first three Claimants are the daughters of Mrs Devas and the fourth, Annabel Devas, is her daughter in law, being the widow of her son Francis who died in 1994. In fact, Mrs Devas had six children in all, being the first three claimants and their brother Stephen who lives in Australia and two further sons, Francis whom I have already mentioned and Philip who also pre-deceased her.

The Defendant Marcus Mackay is the son of one of one of Mrs Devas’ carers, Zandra Mackay, and is the executor and sole beneficiary of the the last will of Mrs Devas dated 1 November 2005, (“the disputed will”).

The Claimants seek a pronouncement against the force and validity of the disputed will and in favour of the 2002 will, in solemn form.

The Defendant did not appear at the trial and was not represented. However, a Defence and Counterclaim was filed on his behalf on 22 July 2008, in which he sought a pronouncement in favour of the disputed will and against the 2002 will.

However, he failed to disclose any documents or to file or serve any expert or witness evidence in opposition to the claim or in support of his own counterclaim. By an order of Master Moncaster of 24 November 2008, a stay until 14 November 2008 was extended until 14 December. A further order for a stay until 31 May 2009, was made on 4 March 2009. Miss McDonnell informed me that the second stay was agreed in order to allow a formal police investigation to proceed in relation to Mr Mackay, his mother, Zandra Mackay, Deborah Atkinson also an employee of Mrs Devas and her mother, Beryl Benbow, relating to thefts from Mrs Devas.

During the stay, the Claimants’ solicitors received no substantive response to their proposed revised draft directions in relation to disclosure, witness statements and expert evidence which they sent on 16 April 2009, despite also sending numerous chasing letters. The Claimants had given extensive pre-action disclosure on 26 March 2008 and had provided Mr Mackay with a copy of their expert medical report on 15 February 2008.

On 23 June 2009, Mr Mackay’s solicitors stated that they no longer acted for him. The Claimants’ solicitors informed them that they would continue to correspond with Mr Mackay through them until they either formally came off the record or they provided an alternative address with which to correspond with Mr Mackay. Neither step having been taken, a list of documents and witness statements were served on Mr Mackay at his solicitors’ address on 29 June 2009 and trial bundles were served in the same way on 2 July.

In fact, an order removing Mr Mackay’s solicitors from the record was not made until 9 July, application having been made by notice dated 2 July 2009. No notice of that order had been served upon the Claimants’ solicitors pursuant to CPR rule 42.3 prior to the trial and the existence of the order was discovered only by chance during the hearing when a search was made for the original of the disputed will which purportedly had been lodged.

Although the Claimants were in a position to call all of their witnesses at trial and make them available for cross examination, Mr Mackay was neither represented nor did he appear in person. In this regard, Miss McDonnell referred me both to CPR 57.10 which is concerned with failure to acknowledge service or file a defence in probate actions, to the Court’s general powers of case management and to Cairns v Flannery & Ors [2008] EWHC 3449 (Ch), a probate action, heard by the Chancellor, Sir Andrew Morritt, in which the defendant did not appear. In that case, a compromise was reached with the defendant who had filed a defence. The other defendant failed to serve an acknowledgment of service and his solicitors confirmed by letter that his instructions were that he did not wish to become involved. On that basis the Master made an order that the claim be tried on written evidence alone. In the circumstances of this case, although Mr Mackay acknowledged service and a defence and counterclaim was served, I considered it appropriate that the same course should be adopted.

At the beginning of the trial, the Claimants sought to challenge the disputed will on three grounds namely:

In the afternoon of the first day of the hearing, Miss McDonnell referred me to the judgment of Mr James Munby QC, as he then was, sitting as a Deputy High Court Judge, in Killick v Pountney (1999) Times April 30 1999. In that case, also a probate action, the only issue was one of undue influence and the defendant neither served a defence nor attended the trial. An order had been made that the trial proceed on affidavit evidence only. However, the learned judge determined that although he would not have the benefit of cross examination, he wished to hear oral evidence from each of the main witnesses. He deals with this matter at 27-C-F of the judgment.

In the circumstances, I too made clear that if Miss McDonnell intended to continue to pursue the additional claim in relation to undue influence, in relation to which the burden of proof lies firmly on the claimant, it would be appropriate to hear oral evidence from the witnesses upon whom she principally relied. In the circumstances, in order to avoid incurring further costs, the Claimants decided not to pursue the claim based upon undue influence.

It is agreed by almost all of those whose witness statements were filed on behalf of the Claimants, that Mrs Devas was an intellectual lady who was a philanthropic bibliophile who enjoyed socialising with academics and was also devoted to her children and grandchildren. She had a substantial library, containing numerous rare and valuable books which she treated with reverence. They also agree that she was a difficult woman who could be manipulative, divisive, rude, demanding and controlling but also warm, affectionate and caring.

Mrs Devas was careful not to allow her children to become involved in her affairs and took advice from professionals about her investments and legal matters and whilst she was able to do so, arranged the provision of her own care. She also had a secretary. Her friend Roger Rigge, whom she also employed to assist her with her day to day financial and administrative affairs, in his witness statement described how Mrs Devas constructed a myriad of “Chinese walls” so that no member of the family ever really knew what was going on in the family finances or any other matter which Mrs Devas chose to keep to herself.

The majority of the evidence filed on behalf of the Claimants also made clear that Mrs Devas was very conscious of social status and would never allow the difference between her perceived status and that of her employees to become blurred. She kept family matters private and despite the fact that she was not on the best of terms with all of her children all of the time, she would not have given voice to any family disagreements in public.

She was a devout Roman Catholic and in 1991 had drafted a Declaration of Faith. She travelled extensively, was engaged in writing her memoirs and wrote constantly to her children and grandchildren, to whom she expressed affection and love, sometimes in an idiosyncratic way. She displayed particular delight in her grandchildren and was interested in their education. All the evidence also pointed to a person who was very particular about the use of language to the point of pedantry.

Mrs Devas suffered her first stroke in 1995 and her son Stephen’s evidence was that her personality changed as a result. Her speech was also affected and although she regained a degree of mobility, she could only walk short distances and needed full time care. She had executed a will on 15 October 1995 in which she made various pecuniary legacies, mostly to children and grandchildren and left her residuary estate on trust for her husband and in default for her four surviving children and her daughter in law, Annabel’s children.

In November 2000, shortly after her husband Professor Michael Devas, death, she moved to a flat at 49 Beaufort Place, Cambridge, overlooking Magdalen College. The flat was purchased with the help of Roger Rigge.

Almost as soon as she had moved to Cambridge, Mrs Devas became wheelchair bound, but at first, was able to control an electric wheelchair and made trips into Cambridge without the assistance of her carers. She suffered another stroke on 6 November 2000. During this period, carers were provided by an agency and there was a reasonable turnover, mostly as a result of Mrs Devas’ difficult personality. At this time, Mrs Devas was anxious about the level of care fees and was concerned to preserve her capital in order to secure her level of income.

After her move to Cambridge, all of her surviving children, save for Stephen who lives in Australia and in respect of whose witness statement a hearsay notice was served, and her daughter in law continued to visit her regularly, although not particularly frequently. They also contacted her by telephone and sent letters and postcards. Stephen rang regularly even though after about 2004, he had to improvise a dialogue because his mother did not enter into the conversation.

Mrs Devas suffered yet another stroke on 3 July 2001 and having consulted Mr Miles Shelbourne, a solicitor formerly of Shelbournes Solicitors and thereafter, of NBM Massucco Shelbourne, both based in Cambridge, she executed a new will dated 4 October 2001. Mr Shelbourne’s file note from his visit to her on 26 July 2001, records that, “She was very demanding of children. Has created a rift.” Nevertheless, that did not prevent her in her will of 4 October 2001 and in subsequent professionally drawn wills, including the 2002 will, from leaving her estate to them and her grandchildren.

She appointed her daughter Elizabeth, the second claimant and her daughter in law, Annabel, the fourth claimant, as executrices and Elizabeth and Stuart Fraser of Brewin Dolphin Securities Limited, her financial and investment adviser as trustees, made small pecuniary legacies, created a trust of £300,000 for her grandchildren and left her residuary estate for her daughters, daughter in law and surviving son.

She made a will containing similar provisions on 14 December 2001, which was also drawn by Mr Shelbourne, who advised Mrs Devas in relation to it. Mr Shelbourne visited her at her home in order to take instructions for the wills and states in his witness statement that although it took him a little time to accustom himself to her articulation, she was able to make herself understood at this stage. He states that she was quite clear that she wished to divide her estate between her family. Mr Rigge also confirms that despite her sometimes difficult relations with her immediate family, Mrs Devas was in no doubt that she wished to split her wealth between them and that that was what her late husband would have expected.

Mr Shelbourne was also mindful of whether Mrs Devas had testamentary capacity, in the light of her references to her failing memory. However, he was satisfied that she understood the provisions of the will in question, the full extent of her assets and the natural line of her beneficiaries.

In September 2001, Mr Shelbourne had made enquiries of Mr Fraser about how much Mrs Devas could prudently distribute by way of lifetime gifts and Mr Fraser had replied by letter of 10 September 2001 that he was paying her £4,000 per month which together with her other income was sufficient to meet her daily living expenses. He also observed that if one were ultra cautious, she should not distribute any of her capital but on the basis that she was unlikely to live more than another ten years, he would have thought that she could make gifts up to £100,000. In fact, Mr Shelbourne advised her only to make gifts of up to £30,000.

Later, on 26 November 2001, Mr Shelbourne recorded in an attendance note of a telephone call from Mrs Devas, that she was eager to make provision for her grandchildren, but was aware that if she were to give away too much of her capital she would have insufficient to generate the level of income upon which she relied. She also confirmed to him that she was perfectly willing to pay his reasonable fees for time spent.

It was in 2002 that Mr Rigge noted that Mrs Devas’ health began seriously to decline and that her behaviour became peculiar, that she was prone to tearful episodes and that she appeared to have lost her inhibitions. He had written to Mrs Devas on 3 January 2002, expressing his concerns about her ability to remain in control of her financial affairs. He had stated that she had sufficient capital to generate enough income if properly managed but that her failing memory was causing her to mismanage her affairs severely. Mrs Devas responded to him in her own hand writing but did not deal with his concerns. At this stage, Mrs Devas was also being treated for breast cancer.

Mr Shelbourne received a letter from Mrs Devas dated 1 March 2002, which demonstrates that Mrs Devas no longer understood the trust provisions in her most recent will. However, Mr Shelbourne’s evidence is that she understood the contents of her will when she executed it in December 2001. The third claimant, Mrs Devas’ daughter Magdalen, who is known as Magda, also became concerned about her mother’s mental capacity at this time and contacted Mr Shelbourne.

In July 2002, Mrs Devas wrote in her own handwriting to Mr Shelbourne apologising for the late payment of his fees and commenting upon her poor memory. The letter contains no complaint about the level of the fees incurred.

Later in the summer of 2002, Mr Shelbourne took further instructions from Mrs Devas about further minor alterations to her will, inserting a provision to deal with her books and removing the trust for the grandchildren. Elizabeth and Annabel Devas, the second and fourth claimants respectively, were appointed as executrices and after various small pecuniary legacies and the division of Mrs Devas’ books between children and grandchildren, she left her residuary estate in five equal shares, one to each of her three daughters and surviving son and one share as to half to her daughter in law, Annabel and the other half to Annabel’s sons, her grandsons.

The 2002 Will was executed on 23 July 2002 and was witnessed by Mr Shelbourne and Phoebe Chibander, one of her carers. Mr Shelbourne was mindful of her forgetfulness and difficulty in communicating but was satisfied that she had sufficient level of understanding to proceed. His attendance note records that Mrs Devas was sufficiently in command of her faculties to enquire whether one of the legacies would be tax free. At that meeting, Mr Shelbourne also contacted Mrs Devas’ investment adviser, Stuart Fraser and her accountant and advised her not to make any substantial lifetime gifts unless she was happy to deplete capital and only to make small gifts if she did so, a strategy with which Mrs Devas was happy. On 25 July 2002, she hand wrote a letter to Mr Shelbourne, detailing the nature and level of her day to day expenditure and commenting that she would have to take care. However, a letter of the following day suggests that she may have already forgotten whether her son Stephen was a beneficiary of the 2002 will.

In August 2002, Mr Rigge was contacted by the care agency which had provided Mrs Devas with assistance and informed him that they refused to work with her from 4 September. Shortly afterwards, Mr Rigge too declined to work for Mrs Devas any longer partly as a result of her failing memory.

In November 2002, she wrote to Mr Shelbourne, mindful of balancing her desire to make gifts to her children whilst not wanting to find that she could not meet her expenses. By early 2003, the correspondence reveals that whilst still concerned about money, Mrs Devas had ceased to be able to approach the matter rationally and had lost perspective. This came at a time when Mrs Devas had begun to make unfounded accusations of theft against her carers. Deborah Atkinson was first employed by Mrs Devas around this time.

It was on 19 August 2003 that Mrs Devas was assessed by Dr Rudi Kritzinger, a psychogeriatrician, having been referred to the Older Persons Mental Health Services by her general practitioner, Dr Dansie. Dr Kritzinger noted symptoms consistent with cerebro vascular cognitive deficits which met the criteria for a diagnosis of vascular dementia. The cognitive difficulties which were revealed were significant and included problems with orientation to time and place, difficulties with concentration and delayed recall. He also noted that her general knowledge and knowledge of recent events was poor.

Unfortunately, Mrs Devas suffered yet another stroke on 27 August 2003 and shortly afterwards, the Defendant’s mother, Zandra Mackay, began work as the Deceased’s carer. She was hired privately and had no connection with an agency or social services. Numerous witnesses note a change of atmosphere once Zandra Mackay started to work for Mrs Devas. They found her bossy, over familiar with Mrs Devas and controlling. She would often state that Mrs Devas could not speak to them if they telephoned and was generally obstructive. Gertrude Jackson also became one of Mrs Devas’ carers at about this time until she left in October 2006.

The preponderance of the evidence suggests that by the end of 2003 or early 2004, Mrs Devas was no longer able to communicate except as to her basic needs and was no longer able to leave her flat unless accompanied by a carer. Mrs Devas’ daughters also state in their witness statements that by October 2002, their mother was paralysed, unable to walk, had slurred speech and could not eat or maintain her personal hygiene without aid. By 2004, they doubted that she understood anything and had started to watch television, something she had never done before, and to continue to do so vacantly, during their visits.

It was in early 2004 that it is suggested that Mr Mackay was introduced to Mrs Devas by his mother although the circumstances in which this occurred are unclear.

By April 2004, Zandra Mackay had taken full control over Mrs Devas’ care and in July, she wrote to Magda, the third claimant, declaring herself to be in charge and that all concerns about Mrs Devas should be addressed to her. In addition, numerous witnesses stated that they experienced increasing difficulty in contacting Mrs Devas or in arranging visits. For example, Angela, the first claimant, says that in April 2004, Zandra Mackay informed her that she should not visit Mrs Devas because she was unwell. Around this time, Mrs Devas had been admitted to hospital because she had been vomiting all night. However, neither Zandra Mackay nor any of the other carers informed Mrs Devas’ family. They only became aware that she had been ill and admitted to hospital after her death.

From this time onwards, the preponderance of evidence suggests that Mrs Devas often did not recognise her children and on occasion, asked after her husband who had been dead since 1999.

From November 2004 onwards, very substantial cheques were drawn on Mrs Devas’ bank account in favour of Zandra Mackay and Deborah Atkinson her secretary. All the evidence points to Zandra Mackay and Deborah Atkinson having control of Mrs Devas’ cheque book and pin number by this time. Considerable sums were also withdrawn in cash from cash machines. Mrs Devas neither had use for the cash nor could she have withdrawn it herself. By this time, Magda and Annabel’s evidence is that Mrs Devas could no longer understand the written word.

Having discussed the depletion of Mrs Devas’ capital with Mr Rigge, Mr Shelbourne went to see Mrs Devas for the last time on 4 August 2005. He recorded the discussions which took place in the presence of Deborah Atkinson, in a letter he wrote on the same day. He mentions that Mrs Devas suggested that her daughter Elizabeth, the second claimant, had been pestering her to sign a power of attorney. He also drew attention to the fact that she had spent £405,000 in the last three years and could not continue to do so. Lastly, he indicated that he would be willing to be appointed as her attorney on certain conditions, including that she appreciated and understood what she was doing in giving him such powers. There is nothing to suggest that Mr Shelbourne was underhand or unhelpful or that Mrs Devas objected to his fees, on this occasion, or any other.

At about that time, Elizabeth had visited her mother because she was concerned about her level of spending and whether she would be able to continue to live in her own home with her books, if her capital became so depleted and there had been discussion about a power of attorney. Elizabeth’s evidence was that she never suggested that Mrs Devas be put in a care home without her books; in fact, her intentions were to try to avoid such a fate. However, she also noted that those discussions could not take place confidentially because the door of Mrs Devas’ sitting room had been removed.

It seems that the disputed will was executed on 1 November 2005. It was witnessed by Deborah Atkinson and Zandra Mackay. They both had benefited considerably from the payments made from Mrs Devas’ bank account to which I have referred.

The will was clearly not drawn up by a solicitor and there is no evidence of any advice having been given in relation to it or that it was read to her. It was typed on a piece of Mrs Devas’ headed note paper, presumably by Mrs Devas’ secretary, Deborah Atkinson, given that it is clear from the preponderance of the evidence that Mrs Devas would not have been capable of doing so herself by this time. Mrs Beryl Benbow, Deborah’s mother is named as executrix if Mr Mackay were unable to act. The substantive part of the will is in the following form:

“This year has been traumatic for me – I have discovered my Family have an agenda, all want control of my money and life. Their wish to remove me from my home and put me in care without my books.

I saw my ex solicitor Mr Miles Shelbourne to discuss Elizabeth Devas obtaining Power of Attorney and her underhanded ways of pursuing this.

Mr Shelbourne offered to be my Power of Attorney but his charges were unreasonable for him to carry out this duty.

I also discovered Mr Roger Rigge a friend of Mr Shelbourne made calls to my staff to obtain access to my Flat and papers for my Family to have.

I therfore, leave everything to Mr Marcus Mackay including the Flat 49 Beaufort Place, Thompsons Lane, Cambridge CB5 8AG.

Specific wishes and gifts to be put in place by him.

I would like to be buried next to my late Husband as discussed with Marcus.

Robin Myers and Professor Derek Brewer to have books from my library of their choice.

Marcus to make gifts to my Grandchildren at his discretion.

Mervyn to have two pictures from the flat of his choice. “

On 22 December 2005, Mrs Devas’ only sibling, her brother Billy died. In his witness statement, her son, Stephen describes how he attempted to contact Mrs Devas in order to tell her but was prevented from doing so by Zandra Mackay. In a similar manner, an old friend of Mrs Devas, Michael de Bellissen found great difficulty in contacting Mrs Devas in order to arrange a visit in February 2006 and had his actual visit curtailed by Zandra Mackay.

In the same vein, Magda, the third Claimant was informed by Deborah Atkinson the day before entering into her civil partnership, in November 2006, that Mrs Devas would not be attending because of a reaction to a flu vaccination, despite the fact that there is no record of her having had one.

In March 2006, Gertrude Jackson took a phone call from HSBC bank who were concerned because two cheques had been presented for payment in favour of S. Mackay each in the sum of £10,000. She was informed by Zandra that they were for a new kitchen for Mrs Devas and a new bathroom for the carers. She noted the matters in the day book which was kept as a record of Mrs Devas’ care and took a copy of the relevant pages. Those pages were subsequently removed without any proper reason being given. It was not long after this that Gertrude felt that she was encouraged to leave Mrs Devas’ employment.

Mrs Devas died in the early hours of 9 December 2006. In fact, it is clear from her medical records that she had been visited by a doctor on 7 December 2006 and everyone knew she was dying. Angela states that the carers told Dr Owens that she was estranged from her family and did not wish them to be informed. The carers had also contacted undertakers on two occasions on 8 December 2006 to state that the death was imminent but did not telephone her children. Neither did Zandra Mackay and Deborah Atkinson contact a priest. In a letter from Mr Mackay’s solicitors of 18 December 2006, it is suggested that Mrs Devas had lost her faith after the death of her brother but there is no evidence for this of any kind.

In addition, in a telephone call with Elizabeth, the second claimant, on Sunday 10 December 2006, Deborah Atkinson had suggested that she could go to Mrs Devas’ flat and destroy the disputed will. Annabel, the fourth claimant also had a telephone conversation with Deborah Atkinson shortly after Mrs Devas’ death in which she was asked how Mrs Devas knew Mr Mackay. Deborah Atkinson responded that he had come to repair some lights at Mrs Devas’ flat and had visited two or three times. The explanation given as a result of a Larke v Nugus enquiry was different again. It was Gertrude Jackson’s evidence that she never knew of Mr Mackay at all.

After Mrs Devas’ death, Mr Mackay failed to attend a meeting which had been arranged at the flat and refused to let the claimants have access to it. A copy of the disputed will was provided on 13 December 2006 and Mr Mackay’s solicitors confirmed that he had no intention of disposing of the deceased’s chattels, “at this time”. In a letter of 19 January 2007, it was confirmed that Mr Mackay would not dispose of or interfere with the contents of the deceased’s property until ownership had been resolved.

At a meeting at Mrs Devas’ flat in November 2008, the Claimants’ solicitor asked Mr Mackay whether he had sold any of Mrs Devas’ belongings and was told categorically that he had not. However, there is documentary evidence to show that he had sought valuations of numerous volumes of books including ones which Mrs Devas was known to have owned, as early as March 2007 and there is further evidence that volumes which were the property of Mrs Devas were sold on Mr Mackay’s behalf at Bonhams. The claimants’ solicitor was also contacted by Mr Mackay’s wife who informed her that Mr Mackay had brought books which she believed had belonged to Mrs Devas, to their home. In correspondence, Mr Mackay suggested that the books had been inherited from his grandparents for which there is no foundation in the evidence before the court.

Thereafter, the claimants’ solicitors made repeated requests for authority from Mr Mackay to contact Stuart Fraser in order to raise their concerns about the rate at which Mrs Devas’ capital had been depleted in the years immediately before her death, but received no response for a considerable period. Her capital had stood at £665,000 in 2001 and was reduced to a sum of £26,000 at the date of her death. On the claimants’ evidence, this extraordinary capital expenditure can only be explained on the basis of “gifts” made as a result of undue influence.

In addition, the IHT200 contains reference to lifetime gifts to Zandra Mackay and Deborah Atkinson, between 2004 and 2006, totalling £63,805. As I have already mentioned, the documentary evidence revealed other considerable sums paid from cash machines, (one in Ringwood, close to where Mr Mackay lives), payments made to settle mobile telephone bills, a diners club account and other matters with which Mrs Devas could have no connection whatever and to purchase computers and other electrical equipment which never appeared in her flat. I mention these matters despite the fact that the claimants no longer pursue their case based upon undue influence because they are relevant to the level of suspicion surrounding the execution of the disputed will.

The claimants also requested copies of Mrs Devas’ care records, but were informed that they were shredded every two weeks, a practice of which Gertrude Jackson stated that she had no knowledge whatever.

As I have already mentioned Dr Kritzinger had examined Mrs Devas in August 2003 and had concluded at that stage that she demonstrated symptoms consistent with cerebro vascular cognitive deficits and gave a diagnosis of vascular dementia. In his report of 27 July 2009, he concurred with Dr Royston’s findings to which I shall refer. I was asked to accept Dr Kritzinger’s evidence as expert opinion and I do so.

Dr Claire Royston, a Consultant in Old Age Psychiatry, provided an expert’s report in this matter. She was provided with Mrs Devas’ medical records, including Dr Kritzinger’s report of 2003, all of the witness statements including the draft of Mr Anderson, to which I shall refer and various key documents. Her conclusions are that Mrs Devas suffered from an on going process of cerebral ischemia and resultant strokes and post stroke dementia. In her opinion, it is more probable than not that Mrs Devas retained testamentary capacity in relation to the 2002 will. However, she considers that it is highly improbable that Mrs Devas’ cognitive abilities would have improved from the level which Dr Kritzinger documented in 2003 and as a result given the continued evolution of her illness, it is highly improbable that Mrs Devas had testamentary capacity in relation to the disputed will in November 2005.

In his Defence, at paragraph 19, in defence to the claim of lack of testamentary capacity, Mr Mackay refers to the evidence of Mr Anderson which was served in draft only. The document purports to be the draft statement of a solicitor, Michael Anderson of Andersons, a firm based outside Cambridge. Extracts, supposedly from a conveyancing file, are attached. The draft statement relates that in the autumn of 2006, Mrs Devas intended to sell her flat to Mr Mackay’s wife at a considerable undervalue, namely £150,000. It states that Mr Anderson spoke to Mrs Devas on a number of occasions. He says that during a lengthy telephone conversation, Mrs Devas had told him that Mrs Mackay was an old friend and that she fully understood the implications of signing a consent to mortgage form. He found her mind to be clear and sharp and discussed old books with her.

The draft statement contains numerous mistakes including the spelling of the address of Mrs Devas’ property. Although various letters are attached there are no attendance notes relating to Mr Anderson. In the light of both the factual and medical evidence as to Mrs Devas’ mental and physical states at that stage, I find it extremely unlikely that the events set out in the draft occurred and in the circumstances, there must be a serious question as to whether the draft statement was in fact, produced by or with the knowledge of Mr Anderson at all.

I was referred to a number of authorities central to this area of the law. First, I was reminded of the seminal test in relation to testamentary capacity, set out in Banks v Goodfellow (1870) LR 5 QB 549 which is in the following form:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

In relation to the burden of proving unsoundness of mind, I was referred to para 13.20 of Williams Mortimer & Sunnucks on “Executors, Administrators and Probate” 19^th ed and the decision of His Honour Judge Norris QC, as he then was, sitting as a deputy judge in the High Court, in Ledger v Wootton [2008] WTLR 235, a case in which the issue of testamentary capacity also came before the court on the basis of written evidence only. Miss McDonnell drew my attention to the principles of law which the learned judged referred to as underlying his approach to the question of capacity, namely:

“(a)

The burden is on the propounder of the will to establish capacity.

. . . . .

(c)

Where a will is duly executed and appears rational on its face, then the court will presume capacity.

(d)

An evidential burden then lies on the objector to raise a real doubt about capacity.

(e)

Once a real doubt arises there is a positive burden on the propounder to establish capacity. . . ”

In relation to want of knowledge and approval, Miss McDonnell referred me to Fuller v Strum [2002] 1 WLR 1097 per Peter Gibson LJ at para 32:

“Probate proceedings peculiarly pose problems for the court because the protagonist, the testator, is dead and those who wish to challenge the will are often not able to give evidence of the circumstances of the will. The doctrine of “the righteousness of the transaction” whereby the law places a burden on the propounder of the will, in circumstances where the suspicion of the court is aroused, to prove affirmatively that the deceased knew and approved of the will which he was executed, is a salutary one which enables the court in an appropriate case properly to hold that the burden has not been discharged.

33 But “the righteousness of the transaction” is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, 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. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will presents the wishes of the deceased. 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: Barry v Butlin (1838) 2 Moo PC 480, 483 per Parke B.”

In addition, I was referred to the judgment of Chadwick LJ in Hoff & Ors v Atherton [2005] WTLR 99 at 117, where he considered both testamentary capacity and want of knowledge and approval in the following way:

“A finding of capacity to understand is, of course, a prerequisite to a finding of knowledge and approval. A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. . . . . .

Further, it may well be that where there is evidence of a failing mind – and a fortiori, where the evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will – the court will require more than proof that the testator know the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect – it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator’s capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents – in the wider sense to which I have referred.”

Lastly, Miss McDonnell referred to In Re Rowinska, Wyniczenko v Plucinska-Surowka [2006] WTLR 487, a case in which the testatrix having previously made a professionally drafted will, executed her last will seven weeks before her death when she was very frail and suffering from cancer. The will was prepared by the claimant who was also the sole beneficiary and executor and was challenged on the basis of want of knowledge and approval. Judge John Behrens QC, sitting as a Deputy High Court Judge, referred to the observations of Viscount Simonds in Wintle v Nye [1959] 1 WLR 284 at 291:

“In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so great that it can hardly be removed. In the present case, the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined.”

I was directed specifically to the suspicious features which the learned judge took into account which included the claimant beneficiary’s conduct after the execution of the disputed will. The fact that the claimant kept quiet about the will, misled the funeral director about the relatives and appeared deliberately to have refrained from telling them about the testatrix’s death was taken into account.

Miss McDonnell accepts that the court will ordinarily presume that a testator had capacity at the time when he made his will if it is rational on its face and in such circumstances, that the burden is initially upon the claimants to raise a real doubt as to capacity. Once that real doubt is raised, a positive burden falls upon the propounder once again, to show that the testator had testamentary capacity.

It is also accepted that if the circumstances in which a will is executed are such as to arouse the suspicion of the court, the burden is upon the propounder to prove affirmatively that the will in question represented the true will and intention of the deceased.

In this case, Miss McDonnell submits that as a result of the evidence of both Dr Royston and Dr Kritzinger, not only is there a real doubt as to Mrs Devas’ testamentary capacity on 1 November 2005, but the evidence demonstrates that she lacked capacity. In such circumstances, the burden shifts to Mr Mackay and Miss McDonnell submits that in the absence of evidence of any kind on behalf of the defendant, the claimants are entitled to succeed.

In my judgment, on the balance of probabilities, in the light of the expert medical evidence and the factual evidence as to Mrs Devas’ physical and mental state to which I have referred, the burden must be on Mr Mackay to prove that Mrs Devas had testamentary capacity on 1 November 2005.

The only defence put forward to the testamentary capacity claim is that Mrs Devas took the advice of professionals and was in regular recent correspondence with them and that she was articulate right up to her death. Mr Mackay relies on the references in the disputed will to Mrs Devas’ family, her explanation for leaving her estate to him, the direction to make gifts to grandchildren at the Defendant’s discretion and the specific provision for Mervyn her driver, Robin Myers and Professor Derek Brewer. At paragraph 17 of the Defence, it is stated that she had the 2002 Will at hand when she dictated the disputed will. Reference is also made to a rift with her family in 2005.

At paragraph 13, express reference is made to instructions given after 2003 to Stuart Fraser, Miles Shelbourne and a Michael Anderson. Reference is also made to the proposed purchase of Mrs Devas’ flat at an under value in the autumn of 2006.

There is no evidence before the Court which satisfies me that Mrs Devas had testamentary capacity on 1 November 2005. Both Dr Royston and Dr Kritzinger are of the opinion that on the balance of probabilities, Mrs Devas lacked capacity at that time, Dr Royston in particular, having familiarised herself with the appropriate test. I accept their evidence.

In the light of all the evidence in this matter, there is no basis for the assertions made in the Defence that Mrs Devas was still in regular contact with her advisers in 2005. Furthermore, I have already found that the matters set out in the draft witness statement attributed to Mr Anderson are on the balance of probabilities extremely unlikely to have occurred and that the document must be questionable. Furthermore, the weight of the evidence is that Mrs Devas had not been articulate for a considerable period before her death and certainly was not at the date of the execution of the disputed will. I will deal with the references to the content of the disputed will itself under the heading of want of knowledge and approval.

With regard to want of knowledge and approval Miss McDonnell submits that the circumstances in which the disputed will was executed are such as to excite the suspicion of the Court and to place a separate burden upon the defendant to prove affirmatively that Mrs Devas knew and approved of the content of the disputed will. She submits that the level of suspicion is very high and that there is no evidence before me to dispel the suspicion and satisfy the burden placed upon Mr Mackay.

To my mind there are numerous suspicious features in this case and I list them here:

I have to be vigilant and jealous in examining the evidence in support of the will and ought not to pronounce unless the suspicion is removed and I am satisfied on the balance of probabilities that the disputed will does express the true intentions of Mrs Devas.

With regard to want of knowledge and approval, it is pleaded that the disputed will was dictated by Mrs Devas to her secretary, was read to her and she read it herself before it was executed, that she had read her previous will before dictating the disputed will and was mentally capable at the time. There is no evidence of this whatever.

In fact, there is no evidence before me which is sufficient to satisfy me that the content of the disputed will was truly representative of Mrs Devas’ testamentary intentions, despite the references to Professor Brewer and others. Even if evidence had been adduced on Mr Mackay’s part, it is very difficult to see that in the light of the medical evidence, that of Mr Shelbourne and Mrs Devas’ daughters, it would have been possible for Mr Mackay to have satisfied the court.

Accordingly, I will grant the relief sought. As Dr Royston concludes that on the balance of probabilities, Mrs Devas had testamentary capacity in July 2002, I will direct that the 2002 Will be admitted to probate in solemn form and I pronounce against the disputed will. I am also asked to order possession of Mrs Devas’ flat, to which the executrices will become entitled in any event. However, given the difficulties which have been experienced in this matter, I will also make an order for possession and I award costs against the defendant on the indemnity basis.