Devas & Ors v Mackay

In a probate action, a will is presumed to have been made by a capable testator where it is duly executed and rational on its face. The objector must first raise a real doubt about capacity. The burden then rests on the propounder to prove testamentary capacity.

Where the circumstances of execution arouse suspicion, the propounder must also prove affirmatively that the testator knew and approved the will’s contents. The court must scrutinise the evidence with particular vigilance. Suspicious circumstances may include a homemade will, a radical unexplained departure from earlier wills, involvement of a beneficiary or those controlling the testator, and evidence of mental impairment or isolation.

This was a probate action concerning the validity of a will made by Catherine Marden Devas on 1 November 2005. The defendant, Marcus Mackay, was the executor and sole beneficiary under that will. The claimants, Mrs Devas’s daughters and daughter-in-law, sought admission to probate of an earlier will dated 23 July 2002.

The defendant filed a defence and counterclaim but did not appear at trial, produce evidence or remain represented. The claimants initially challenged the disputed will on grounds of lack of testamentary capacity, want of knowledge and approval, and undue influence. They abandoned the undue influence claim after the court indicated that oral evidence would be required on that issue.

The central issues were whether Mrs Devas had testamentary capacity in November 2005 and whether she knew and approved the contents of the disputed will.

The court granted the claimants’ relief, admitted the 2002 will to probate in solemn form, pronounced against the disputed will, ordered possession of Mrs Devas’s flat and awarded costs against the defendant on the indemnity basis.

1. Testamentary capacity. Applying the test in Banks v Goodfellow (1870) LR 5 QB 549, the court accepted that the burden initially lay on the objectors to raise a real doubt where a will appeared rational and duly executed. In this case, the medical and factual evidence raised that doubt. The burden therefore rested on the defendant to prove capacity.
2. The court accepted the expert evidence that Mrs Devas probably lacked testamentary capacity on 1 November 2005. There was no persuasive evidence that she understood the nature and effect of the will, the extent of her property, or the claims of those who might naturally benefit from it.
3. Knowledge and approval. The circumstances of execution were highly suspicious. They included the homemade nature of the will, the absence of professional advice, its radical departure from previous wills, its uncharacteristic and inaccurate statements, the involvement of the defendant’s close relatives, their control over Mrs Devas’s affairs, and evidence of isolation, unexplained payments and subsequent conduct.
4. Applying Fuller v Strum [2002] 1 WLR 1097, the court was required to scrutinise the supporting evidence vigilantly and to require affirmative proof that the will represented Mrs Devas’s true intentions. No such proof existed. There was no evidence that the will was dictated by Mrs Devas, read to her, explained to her or understood by her.
5. The claim based on undue influence was not pursued. The 2002 will was admitted to probate because the evidence established that Mrs Devas retained testamentary capacity when it was executed.

First-instance decision. The judgment does not state any subsequent appellate history.