Another vulnerable person, another possible fraud

 In Wills

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In the case of Devas v Mackay [2009] EWHC 1951 (Ch) the family of a wealthy widow succeeded in their claim against a home made Will leaving her entire estate to the son of her carer. Mrs Devas had been isolated from her family by her dementia and arguably by the behaviour of her carers. Her capital was substantially depleted before her death in 2006 giving rise to the suspicion of fraud by those caring for her.

Mrs Catherine Devas was a wealthy philanthropic bibliophile who died in 2006 at the age of 83. She left her entire estate to the son of her carer, Zandra Mackay, by a home-made Will executed on 1 November 2005. It appeared to have been signed by Mrs Devas and witnessed by her two carers, Zandra Mackay and Deborah Atkinson. Mrs Devas had previously had Wills drawn up professionally, the most recent being in July 2002. In the 2002 she left her entire estate to her children, daughter-in-law and grandchildren.

Mrs Devas was acknowledged by all as a difficult person, as well as a pedant about language however she was also affectionate towards her children and grandchildren, with whom she had regular contact. She experienced her first stroke in 1995 which affected her mobility. In 2000, shortly after her husband’s death in 1999, she moved to a flat in Cambridge, overlooking Magdalen College. Her health deteriorated and she was soon partially paralysed and in a wheelchair. She subsequently had another stroke in 2001.

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Mrs Devas had always been careful not to allow her children to be involved in her affairs. She took advice from professionals with regard to investments and legal matters and arranged her own care. Her close friend Mr Rigge was employed to help her with her day-to-day financial management and administration. He noted that by 2002 her health had declined seriously and her behaviour had become strange. He had concerns about her ability to manage her financial affairs. When her 2002 Will was executed in July 2002, her solicitor Mr Shelbourne was mindful of her forgetfulness but noted in his attendance records that she was sufficiently in command of her faculties to ask whether one of her legacies would be tax-fee.

It is clear that Mrs Devas was a difficult person and the implication would be that this resulted in the care agency that had been providing her with help to refuse to work for her from the beginning of September 2002. Mr Rigge, soon after, also stopped working for Mrs Devas.

Deborah Atkinson began working as her secretary in early 2003. In August 2003 Mrs Devas saw a psycho geriatrician, Dr Kritzinger. Dr Kritzinger found symptoms which met the criteria for a diagnosis of vascular dementia. Significant cognitive difficulties were revealed including problems with orientation in time and place, difficulty concentrating and delayed recall.

After yet another stroke at the end of August 2003, Zandra Mackay began working as Mrs Devas’ carer. She had no connection with either a care agency or social services and was hired privately. There were numerous witnesses who testified that once Zandra Mackay had started working for Mrs Devas the atmosphere changed. They found her over familiar with Mrs Devas, as well as bossy and controlling. If they telephoned she would often say that Mrs Devas could not speak to them. At about this time Gertrude Jackson also became a carer for Mrs Devas.

Evidence was prevalent that by the end of 2003 or the beginning of 2004 Mrs Devas was only able to communicate her basic needs and could only leave her flat if accompanied by a carer. It is thought that the defendant, Marcus Mackay, was introduced to her in early 2004 though the circumstances were unclear and there was some evidence that she had, in fact, never met him.

Zandra Mackay had taken complete control of Mrs Devas’ care by April 2004. The claimants were Mrs Devas’ daughters and daughter-in-law. She wrote to Magda, one of Mrs Devas’ daughters, declaring herself to be in charge and directing that all concerns should be addressed to her. It became increasingly difficult for people to visit or contact Mrs Devas.

From this time evidence showed that Mrs Devas did not often recognise her children and asked after her husband, who had died in 1999.

From November 2004 very large cheques were paid from Mrs Devas’ account to Zandra Mackay and Deborah Atkinson. Evidence indicated that by this time Zandra Mackay and Deborah Atkinson had control of Mrs Devas’ cheque book and PIN. In fact sizeable sums were drawn from cash machines, something that Mrs Devas could not have done herself. Evidence was also given that Mrs Devas could no longer recognise the written word by this time.

The substantive part of Mrs Devas’ disputed Will, executed in November 2005, read:

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 therefore, 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.

Mr Marcus Mackay was named executor, with Deborah Atkinson’s mother named as executrix if he was unable to act. It was clearly not drawn up by a solicitor.

Mr Shelbourne had seen Mrs Devas for the last time in August 2005. Mrs Devas had suggested that another of her daughters, Elizabeth, had been pestering her to sign a power of attorney. He pointed out to her that her spending could not continue as it was, she had spent £405,000 in three years. He had also indicated that he would act as attorney for her on certain conditions. Nothing suggested that he was being underhand or that she objected to his fees. Mr Shelbourne recorded that the discussions were made in the presence of Deborah Atkinson.

Elizabeth had also visited her mother around this time as she was concerned about the depletion of her capital and whether she could continue living in her home with her collection of books. There had been a discussion about power of attorney. Elizabeth had, however, never suggested that Mrs Devas be put in a home without her books. Elizabeth also noted that the discussions could not be confidential as the door to Mrs Devas’ sitting room had been removed.

Gertude Jackson took a phone call in March 2006 from HSBC querying two cheques made to S.Mackay for £10,000. Shortly after this she felt that she was encouraged to leave. She had noted the phone call in Mrs Devas’ daily care log. The relevant pages were later removed without good reason.

Mrs Devas died on 9 December 2006. Her medical records show that she was visited on 7th December and it was known that she was dying. Her carers had told the doctor that she was estranged from her family and did not want them to be informed. On 8th December 2006 her carers had contacted undertakers twice to inform them of the imminent death, but they did not call her children. They also did not call a priest even though Mrs Devas was a devout catholic.

Mrs Devas’ capital stood at £665,000 in 2001. At her death it was reduced to £26,000. The judge held that on the evidence this depletion could only have been based on gifts made by undue influence.

Testamentary Capacity

An expert’s report was provided to asses Mrs Devas’ testamentary capacity. Her conclusions were that Mrs Devas suffered from ongoing cerebral ischaemia and post stroke dementia. Her opinion was that it was more probable than not that Mrs Devas had testamentary capacity with regard to the 2002 Will, but highly improbable that Mrs Devas’ cognitive abilities had improved and so highly improbable that she had testamentary capacity with regard to the disputed November 2005 Will.

The Judge applied the principles in Banks v Goodfellow (1870) LR 5QB 549 as well as in Ledger v Wootton [2008] WTLR 235, that the burden is on the propounder of the Will to establish capacity. He also stated

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.

The judge held that in view of the medical and factual evidence, the burden was on Mr Mackay to prove that Mrs Devas had testamentary capacity, on the balance of probabilities.

Want of Knowledge and Approval

The judge found that there were a number of suspicious features to the case including:

  • The nature and contents of the disputed Will
    • All Mrs Devas’ other Wills had been professionally drafted
    • It contained spelling mistakes and used language in a way not used by Mrs Devas
    • It contained uncharacteristic statements about her family
    • It contained a significant change in disposition
    • The sole beneficiary was virtually unknown to Mrs Devas

    The judge held that there was no evidence that satisfied him that the contents of the disputed Will were a true representation of Mrs Devas’ testamentary intentions.

    He concluded that, on balance of probabilities, Mrs Devas had testamentary capacity in July 2002, when the 2002 Will was executed and directed that the 2002 Will be admitted to probate. He also made an order for possession of Mrs Devas’ flat and awarded costs against the defendant on an indemnity basis.

    On 22nd October 2009 Zandra Mackay, Deborah Atkinson and Marcus Mackay faced three charges of conspiracy to defraud. Three other members of their families faced similar charges. The case has been referred to Cambridge Crown Court.

    Practice Points

    This case has parallels with the case of Couwenbergh v Valkova [2008] EWHC 2451 (Ch). However, unlike the testatrix in Couwenbergh v Valkova, whose only family lived abroad, Mrs Devas had been in regular contact with her family and friends until shortly before her death. Many questions lie unanswered. Did her solicitor have a duty of care to enquire further as to her capacity and need for a power of attorney, after his last meeting with her in August 2005? Why did her long-term friend Mr Rigge stop working for her and “looking out” for her finances?

    Sadly elderly people with dementia are a vulnerable group and personality changes are recognised in those with dementia relating to strokes. If this person then becomes viewed as “cantankerous” alienating those closest to them, the sufferer is then open to abuse by unscrupulous and unregulated carers.

    As a practitioner don’t leave discussions “hanging”. Remember your client’s best interests. The elderly are a vulnerable if sometimes difficult group.

     

    © Gill Steel, LawSkills Ltd. 2009

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