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    PROBATE : VALIDITY : WILLS : VALIDITY OF FINAL WILL : TESTAMENTARY CAPACITY AT DATE OF EXECUTING WILL

    A will was declared invalid where a beneficiary under it had failed to discharge the burden of proving that the deceased had testamentary capacity at the date of making that will and that the will had been truly representative of her testamentary intentions.

    The claimants (X), who were family of the deceased (Y), sought a pronouncement against the force and validity of one version of Y’s will and in favour of a later will in which the defendant (M) was the sole beneficiary. Y had previously made a number of wills, after consulting her solicitor, under which she had left most of her estate to her family, including X. The final version of those wills was relied upon by X as the valid will. As her health deteriorated, Y had been diagnosed as having vascular dementia. She had suffered a stroke and hired a new carer, M’s mother. Y’s daughters, including some of X, stated that they doubted that Y had understood anything soon after that date. M’s mother took full control over Y’s care and substantial cheques were later drawn on Y’s bank account in favour of M’s mother and Y’s secretary. The disputed will was drawn up, without a solicitor or advice, and left Y’s estate to M. Y later died and so that was her final will. A medical expert found that it was highly improbable that Y would have had testamentary capacity in relation to that will and another medical expert concurred with that opinion. X accepted that the burden was initially upon them to raise a real doubt as to capacity and that once they had done so, a positive burden fell upon M to show that Y had testamentary capacity at the date of that later will. It was accepted that if the circumstances in which the will had been executed aroused the court’s suspicion, the burden was on M to prove affirmatively that it represented Y’s true will and intention. X submitted that (1) Y had lacked testamentary capacity at the date of the earlier will and therefore the burden shifted to M to show that Y had testamentary capacity at that date and, in the absence of evidence for M, X were entitled to succeed; (2) the circumstances were such as to arouse very high suspicion by the court and to place a burden on M to prove affirmatively that Y knew and approved of the content of the earlier will and M had no evidence to dispel that suspicion.

    HELD: (1) On the balance of probabilities, in light of the expert medical evidence and the factual evidence as to Y’s physical and mental state, the burden was on M to prove that Y had testamentary capacity at the date of the final will. There was no evidence which satisfied the court that Y had testamentary capacity at that date. The evidence of the medical experts was accepted. Both were of the opinion that on the balance of probabilities, Y had lacked capacity at that time and one of those medical experts had familiarised herself with the appropriate test. (2) There was no evidence to satisfy the court that the content of the disputed will was truly representative of Y’s testamentary intentions. (3) It was appropriate to grant the relief sought. The will relied upon by X was to be admitted to probate in solemn form and a pronouncement was made against the disputed will.

    Judgment for claimants

     

    [2009] EWHC 1951 (Ch)


    IN RE THE ESTATE OF CATHERINE MARDEN DEVAS, DECEASED sub nom (1) ANGELA DOROTHEA DEVAS (2) ELIZABETH FERELITH MARY DEVAS (3) MAGDALEN CATHERINE DEVAS (4) ANNABEL DEVAS v MARCUS MACKAY (2009)

     

    Lawtel: 17.08.09