Philanthropist's contested will ruling only tip of rise in probate disputes

The children of a wealthy book lover have succeeded in their claim to her estate as the High Court found that she could not have made a will naming the son of her carer as sole beneficiary.

In a will drawn up by her solicitor in 2002, Catherine Devas, who died in December 2006, left her estate to her family, but a later homemade will dated November 2005 named Marcus Mackay, the son of her carer, as sole beneficiary.

The judge, Sarah Asplin QC, said in Devas v Mackay [2009] EWHC 1951 (Ch) that Mrs Devas did not have testamentary capacity at the time the 2005 will was made.

She said medical evidence about Mrs Devas' diminished physical and mental health was so compelling that the burden was on the defendant to prove she had capacity to make the contested will.

According to the judge there were also 'numerous suspicious features' indicating that Mrs Devas could not have known or approved of the content of the 2005 will.

These included the fact that the will was homemade rather than professionally drawn up and that it contained statements about her family that were uncharacteristic.

Lucinda Rowley, a solicitor with Hewitsons, who represented the Devas family, said the case was 'a classic case of a carer abusing a position of trust to take advantage of an elderly person'.

She also said the case was illustrative of the rise in contentious probate cases identified in the latest court statistics which showed a 45 per cent rise in cases of contested wills, from 73 in 2007-08 to 106 in 2008-09.

There are various possible explanations for this, says Rowley, including 'the property price boom two-three years ago, which has increased the average values of net estates and makes it more worthwhile for potential claimants to embark on litigation.

'With the economic downturn, families are likely to be keener to secure their rightful inheritance. Also, we have an ageing demographic which means that testators are living longer, making it more likely that they will suffer from dementia or other illnesses which affect their testamentary capacity.'

Victoria Jones, partner in the contentious probate department at Lester Aldridge, agreed, and said the scenario was very common '“ although she said only a small number of disputes ended up in court litigation, mostly because of the costs involved.

'We are seeing a lot more of these cases. The recession has had a slight impact, but the main reason is that greater media coverage of contested wills has made the public more aware of the possibility to contest a will. People are now less prepared to accept a situation and will consult a solicitor.'

She said solicitors should watch out for 'red flags' when considering late changes to wills. 'For example, an elderly testator, who has suffered from ill health or dementia, has left all or a significant part of their estate to a carer or somebody who has come in to their life recently or where a different solicitor from their usual solicitor has been instructed to draw up their will '“ any of these could arouse suspicion.'

Angela Bowman, a partner at Henmans, also welcomed the decision to award costs against the defendant on an indemnity basis. 'It may help to deter others with unmeritorious claims or defences from pursuing such cases,' she says.

Bowman continues: 'We will see an increasing number of probate claims in which costs will be awarded against unsuccessful parties on the indemnity basis, at least from the date that it should have been clear to the unsuccessful party that their claim/ defence was not going to succeed.'

At the time of writing, Zandra Mackay, her son, and Deborah Atkinson, an associate, were being investigated by the police and papers were shortly to be sent to the CPS.