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Will ruled invalid due to lack of mental capacity – Drake v Dervish


The High Court has recently found a Will invalid due to lack of mental capacity. The Court made its decision even though the Will was drafted by solicitors and there was medical evidence that the testatrix had capacity.

This was a claim by seven not-for-profit organisations that the 2006 Will of Peggy Byford (“Mrs Byford”) was invalid. They argued that Mrs Byford lacked the mental capacity to make a new Will back in 2006 and that she also did not know or understand the contents of her Will. It is difficult for these types of claims to succeed, but in this case, the Court agreed that Mrs Byford did not have capacity to make a Will.

Mrs Byford’s Will

Mrs Byford was a widower who did not have any children. In 1986 she made a Will leaving almost everything to her husband or, if he died, to seven animal rights charities. In 1995 she signed a Codicil (an amendment) adding an eighth charity.

In 2006 and 2011, Mrs Byford made Wills which left a large part of her estate to her carer, Nadia Dervish. Ms Dervish and an associate were later convicted of stealing nearly £280,000 from Mrs Byford and of wilfully neglecting her. They were both given prison sentences.

The case of Drake v Dervish [2019] EWHC 646 (Ch) was brought by the Executors of Mrs Byford’s Wills. The Executors previously had the 2011 Will declared invalid, and therefore this case was about determining which of the 1986 or 2006 Wills was the last valid Will.

The 2006 Will was the most recent and would normally have been the one admitted for probate. However, the 2006 Will was in Ms Dervish’s favour. The charities therefore asked for the 2006 Will to be declared invalid, so that the 1986 Will and 1995 Codicil (which were better for them) could instead be admitted to probate.

The charities were successful in overturning the 2006 Will. The Court found that, whilst Mrs Byford knew and approved the contents of her Will, she did not have the necessary mental capacity to make it.

The Court’s decision

The Court confirmed that the test for capacity to make a Will comes from the 1870 case of Banks v Goodfellow. It quoted the famous passage that:

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."

Making this decision required the Court to carefully consider all the facts. This is one of the most important parts of the case. Proving a lack of capacity is very hard to do, and the Court generally errs on the side of upholding Wills. Furthermore, the 2006 Will was drafted by experienced solicitors and there was even a note from one Dr Wesby, a medical doctor who met with Mrs Byford just before she signed her 2006 Will, stating that he thought Mrs Byford had capacity. So how did the charities do it?

How charities successfully overturned the 2006 Will

The charities heavily relied on expert medical evidence from Dr Martine Stoffels and Professor Robin Jacoby. Their reports were based on Mrs Byford’s GP and hospital records.

Dr Stoffels criticised Dr Wesby’s analysis. She argued Dr Wesby did not provide much detail, which might indicate he did not carry out a thorough assessment. She also argued Mrs Byford’s short-term memory problems and Alzheimer’s disease – acknowledged by Dr Wesby – meant it was unlikely she understood how she was splitting up her estate.

Professor Jacoby similarly concluded that Mrs Byford lacked the capacity to make a Will in 2006 due to her dementia. He criticised Dr Wesby for meeting Mrs Byford for only 10 minutes, which was insufficient time (he argued half an hour or even a full hour was necessary). He also felt Dr Wesby should have conducted additional medical tests, given that he knew Mrs Byford had dementia. Furthermore, Professor Jacoby criticised the solicitors who drafted the Will for failing to give Dr Wesby enough information to carry out a full assessment. This would have required information about Mrs Byford’s assets (to assess whether she was able to understand the extent of her estate) and information about the changes brought by the 2006 Will (to assess whether she knew the difference between her Wills).

After reviewing the medical evidence, the Court concluded that Dr Wesby’s analysis was of some value, but that it carried less weight than if he had carried out a thorough examination. Dr Wesby did not have enough information to carry out a full assessment; however, unlike the other experts, he not only met Mrs Byford but actually saw her on the day she made her 2006 Will.

Meeting the Banks v Goodfellow test

The Court held that Mrs Byford had sufficient capacity to meet the first condition of the Banks v Goodfellow test: the ability to understand the nature of the act of making a Will and its effects. She also had capacity to meet the second condition of the test: the ability to understand the extent of the property of which she was disposing.

However, the Court felt Mrs Byford did not meet the third condition of the Banks v Goodfellow test: she was not able to understand the claims to which she ought to give effect. Her dementia “impaired her ability to make considered judgments of the moral claims of those who were to benefit from her bounty”. She also appeared unsure about what she wanted to do: first saying she wanted to leave everything to charity, then saying she wanted to leave 80% to Ms Dervish, then saying she only wanted to leave 40% to Ms Dervish.

The Court noted that, in any event, it was not satisfied Mrs Byford would have been able to meet all three conditions at the same time because of her short-term memory problems. The 2006 Will would therefore have been invalid even if Mrs Byford had met the third condition because “a testator … is not capable of making a will [if] despite being able to satisfy the Banks v Goodfellow test conditions one at a time, he or she cannot satisfy them concurrently.”

Applying this case in the future

It will be interesting to see how this case will be applied in the future. The judgment seems to open the door for more claims based on short-term memory loss, even where the person making the Will was otherwise able to understand what they were doing. That said, one cannot help but wonder how much of the outcome is due to the Court’s desire to ensure Ms Dervish did not receive anything from Mrs Byford’s estate beyond the nearly £280,000 she had stolen.

If you are looking to challenge the Will of somebody who you think did not have mental capacity, please contact a member of our Contentious Private Client department.

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