Kunicki & Anor v Hayward

This is the judgment following the trial of a claim principally as to the substantial validity of a will dated 22 August 2013 ("the 2013 Will") of Mr. Jack Hayward deceased ("Mr. Hayward").

Mr. Hayward was born on 27 November 1932. He married Patricia ("Mrs. Hayward"), who died in 2008 having developed dementia towards the end of her life. Mr. and Mrs. Hayward had two children, Fiona, the Second Claimant ("Fiona") and Iain, the Defendant ("Iain"). Fiona is married to Jan Kunicki, the First Claimant ("Jan"). They have 3 daughters; Lauren, Amy and Hannah. Iain was married to Renate Tomek but they are now divorced. They have two daughters; Yasmin and Sarah.

Prior to his death Mr. Hayward made a number of wills. It is only the last of those wills the validity of which is contested.

By a will dated 31 December 1978, subject to minor legacies Mr. Hayward gave the whole of his estate to Mrs. Hayward or, in the event that she predeceased him, to Fiona and Iain in equal shares.

By a will dated 5 December 2005 (i) Mr. Hayward appointed Fiona and Iain his executors, (ii) Mr. Hayward gave all his interest in his business known as Jack Hayward Harps to Iain and (iii) Mr. Hayward gave his residuary estate, as to 90%, to Fiona and Iain in equal shares and, as to 10%, to his granddaughters in equal shares.

By a will dated 26 August 2008 ("the 2008 Will") (i) Mr. Hayward appointed Fiona and Iain his executors, (ii) Mr. Hayward gave all his interest in the business known as Jack Hayward Harps to Iain and (iii) Mr. Hayward gave his residuary estate, as to 50%, to his granddaughters in equal shares, as to 25%, to Fiona and, as to 25%, to Iain.

By the 2013 Will (i) Mr. Hayward appointed Fiona and Jan his executors, (ii) Mr. Hayward gave his chattels, as defined by section 55(l)(x) of the Administration of Estates Act 1925 to Fiona and Jan as trustees, expressing the wish that they distribute the chattels according to a letter of wishes and otherwise as if forming part of his residuary estate and (iii) Nf. Hayward gave his residuary estate, as to 50%, to Fiona and, as to 50%, to his granddaughters in equal shares.

Mr. Hayward made a letter of wishes on the same day. By it Mr. Hayward expressed the wish that Iain should receive (i) an Erard Harp number 1387, (ii) "all my Harp music business, which includes several first and only published editions on harps... " and (iii) Mr. Hayward's autographed pictures of famous harpists of the 20^th century. (Mr. Hayward expressed further wishes in the letter but they are not relevant to the present dispute).

Mr. Hayward died on 9 January 2014. Jan and Fiona seek to have proved the 2013 Will in solemn form. Iain contends that the 2013 Will is not valid and seeks to have proved the 2008 Will in solemn form. He seeks, altematively, a declaration that he and Fiona have contracted to share Hayward's estate equally and specific performance of that alleged contract.

Iain challenges the validity of the 2013 Will on 3 grounds; namely, that (i) Mr. Hayward did not have capacity to make it, (ii) Mr. Hayward did not know and approve its terms and (iii) (by way of an amendment which I permitted at the beginning of the trial) it was procured by what Iain alleges is Fiona's fraudulent calumny.

It is to be noted that, whilst the matters I have summarized in paragraph 1 1 may be symptoms of a disease which causes testamentary incapacity, they cannot, of themselves, be said to be causes of that incapacity. It follows therefore that Iain's case, as pleaded, must be that Nf. Hayward lacked testamentary capacity as a result of the heart attack he had suffered, the colon cancer he was suffering from and/or prescription drugs. In closing, Mr. Curry, who appeared for Iain, relied, in support of tffs plea, on the fact that, by July 2013, Mr. Hayward was anaemic which, it is not disputed, was probably because his cancer had metastasised. By 19 July 2013 Mr. Hayward had been prescribed iron tablets to teat the anaemia.

By paragraph 35 of the Amended Defence & Counterclaim Iain alleges that Mr. Hayward did not know and approve the contents of the 2013 Will because:

By paragraph 35A of the Amended Defence & Counterclaim Iain alleges that the 2013 Will was procured by Fiona's fraudulent calumny; that is, a false assertion, which she knew to be untrue or as to the fruth of which she was reckless, that Iain "could not be trusted and had behaved dishonestly regarding Mrs. Hayward's estate". Because Iain's claim is based on an email exchange between Fiona and Mr. Hayward, before turning to the particular words on which Iain relies to support his claim that Fiona made such an assertion, I need to set out, in a little detail, that (and the salient parts of a further) email exchange.

On 1 April 2013 Mr. Hayward sent an email (timed at 15:49) to Fiona and Jan. In it he asked them principally whether Iain, as Mrs. Hayward's personal representative, had given them a list showing Mrs. Hayward's assets, the value of each of them for probate purposes, the amount received on the sale of each asset and the amount, if any, of inheritance tax paid. He continued:

On the same day Fiona replied, by an email timed at 18:08:

On 2 April 2013 Mr. Hayward sent an email in reply (timed at 14:07). He said:

On the same day, Fiona replied, by an email timed at 14:33:

It is to be noted that Iain had sent a cheque, dated 5 March 2013, to Fiona which was cashed on 18 March 2013, in the sum of E74.52 in relation to Mrs. Hayward's estate.

On 12 April 2013, Mr. Hayward emailed Fiona:

Mr. Hayward sent Fiona a second email (timed at 14:39) the same day:

Fiona responded the same day, by an email timed at 20:51 :

The next day Mr. Hayward sent Fiona a further email (timed at 10:27):

Fiona replied the same day, by an email timed at I I :

This email exchange makes reference to an iPad. I deal with the dispute relating to the iPad in more detail below. At this point, however, it is helpful to set out an email exchange, relating to the iPad, which took place. To put the exchange in context, I

On 9 February 2013, Fiona emailed Mr. Hayward:

Although Iain was not copied into this email, he responded to it, on 13 February 2013, by an email to Fiona and Mr. Hayward. I deal below with how come Iain was able to read an email sent from Fiona to Mr. Hayward. Iain responded:

Mr. Hayward responded to Iain on the same day:

The next day Mr. Hayward emailed Fiona:

Iain emailed Mr. Hayward on 14 February 2013:

On 21 February 2013, following an email from Nf. Hayward to Iain, Iain replied:

On 23 February 2013 Mr. Hayward emailed Fiona:

On the same day Iain emailed Nf. Hayward, in response to Mr. Hayward's request to him to explain why he had disconnected Mr. Hayward's email address and for the return of the iPad, saying:

On the same day Jan prepared a note which called into question (i) Iain's explanation for the purchase of the particular model of Mr. Hayward's iPad in the first place, (ii) Iain's explanation for what became of the iPad after its purchase and (iii) lain's explanation for how come he had read Fiona's first email relating to the iPad. At some point thereafter, a copy of the note was given to Mr. Hayward.

On 3 March 2013 N'fr. Hayward emailed Jan:

On 15 April 2013 Mr. Hayward emailed Iain:

On 3 May 2013 Mr. Hayward emailed Iain:

I should record that Iain was not challenged in cross-examination about his case as to (i) why the particular model ofiPad was originally purchased or (ii) what became of it thereafter and why.

In support of his plea of fraudulent calumny Iain relies on the following statements in the following emails:

Iain's altemative contract claim is set out in paragraphs 4 to 7 of the Amended Defence & Counterclaim. Iain alleges that, following a dispute between Fiona and Mr. Hayward in about November 2007, Fiona and Iain had a conversation in which Fiona said that she was concerned that she might be cut out of Mr. Hayward's will and that she and Iain should agree to divide their inheritance from Mr. Hayward equally, to which Iain agreed. Iain alleges that there was a further discussion, on Christmas Day 2007, between Fiona and him when it was agreed that such as either of them received from their father would be divided equally between them. Iain alleges that the agreement was reiterated on at least a further 3 occasions.

The week after Mr. Hayward died Iain telephoned Fiona. He recorded the telephone conversation. Fiona did not know that he was doing so. There is a transcript of the conversation. Iain asked what thoughts Fiona had about "the agreement regarding the will". Fiona said:

The agreement was discussed further but there was no discussion as to its terms.

Iain telephoned Fiona again, on 30 January 2014, to discuss the agreement. He recorded the telephone conversation. Fiona did not know he was doing so. There is a transcript of the conversation. Fiona indicated that she did not want to discuss the

I turn now to consider the wimess evidence.

Fiona expressed the view that Mr. Hayward was completely of sound mind. She holds this view because she observed Mrs. Hayward suffer from Alzheimer's Disease and because she saw Mr. Hayward virtually weekly after May/June 2013. She said that he could hold a conversation on any topic and could recall recent and distant conversations. She described him as lucid, opinionated and a man of detail. She said he showed no signs of any change in his personality and he remained alert. She pointed out that, throughout his life, N,fr. Hayward lived independently and even enrolled on a computer course in May/June 2013. She said that he often discussed with her what he had learnt on the course.

She said that Mr. Hayward wanted to discuss his proposal to change his will with her but she asked him not to do so and she also made clear that she would not accompany him to a solicitor for this purpose. Nevertheless, Mr. Hayward insisted on telling her that he wanted to make Iain "work for his money".

Fiona gave evidence about the agreement contended for by Iain in his alternative claim. She said:

She also said that, at the time of these discussions she did not know about her father's then existing or prior testamentary intentions.

Fiona was cross-examined about the circumstances sumunding the making of the 2013 Will. She said, according to my note:

She was cross-examined about why she did not mention, in her 2 April 2013 email timed at 14:33, her receipt a few weeks before of a cheque from Iain. She said:

She continued:

Fiona was cross-examined about whether Mr. Hayward had given Iain E60,000 to assist Iain in his divorce from Renate Tomek. She said that Iain had said that he had received 50-40,000 not E60,000 as Mr. Hayward had suggested.

Fiona was cross-examined about the circumstances which led to a falling out between her and Mr. Hayward in 2007. She said:

She was cross-examined about Iain's access to Mr. Hayward's emails. She said that Mr. Hayward was surprised that Iain was reading his emails.

Of the second of the recorded conversations, Fiona said: "I wanted to get off the phone. I was fed up with Iain's phone calls"

Jan said, in cross-examination, that Mr. Hayward was upset that Iain had been reading his emails.

Jan and Fiona also relied on the lay evidence of 2 of their daughters, and Margaret and Michael Dennett and the solicitor who drafted the 2013 Will. They also relied on the expert evidence of Professor Robin Jacoby.

Lauren said that she discussed her work in the theaüe with Mr. Hayward in early summer 2013. She never considered him not to be of sound mind. He always spoke with her in detail.

Amy said that she saw Mr. Hayward most weekends in 2013. Mr. Hayward talked to her about his will. He expressed the view that Iain had taken advantage of him. He said that he was thinking about changing his will because he regarded Iain as a spendthrift and as someone who did not look after his money properly. In her witness statement she said that her grandfather "also questioned where it was that Iain seemed to be getting all of his money and suggested that my mother look into the handling of my grandmother's will". Mr. Hayward told Amy, she says, that he wanted to leave Iain a couple of potentially valuable items.

In cross-examination Amy said:

Amy said in her witness statement:

Amy said that Fiona told her, apparently some time ago, that Iain had told Fiona that Mr. Hayward had given him E30,000 at the time of his divorce from Renate Tomek.

Amy and Lauren said they are familiar with mental incapacity because they observed Mrs. Hayward suffering from Alzheimer's Disease.

Mrs. Dennett, a retired nurse, met Mr. Hayward in 2010. Mr. Hayward was a professional harpist and he provided lessons. Mrs. Dennett began to take lessons from him. She believes that she saw Mr. Hayward on 18 July, 2 August and 30 August 2013. She said:

Emma McCarthy was the solicitor at Clifton Ingram who drafted the 2013 Will. She has been a private client lavvyer since qualifying in 2001 and, when she was at Clifton Ingram (she has since changed practices), she drafted many hundreds of wills each year. By 2013, she had received training on the issue of testamentary capacity as a result of becoming a full member of the Society of Trust and Estate Practitioners in about 2010 and having completed a course run by the Association of Contentious Trust and Probate Specialists. By 2013 she was also a member of Solicitors for the Elderly although she did not attend many of the lectures arranged by the local branch. She told me, when I asked her what "the golden rule" was, that a testator must be aware of the extent of his estate and the objects of his bounty. She also told me that, in her view, it was good practice, in the case of an elderly client proposing to make a will, for a GP's report on capacity to be obtained.

Ms. McCarthy effectively produced the will file for the 2013 Will. I therefore deal with relevant documents from the file here.

As I have indicated, Mr. Hayward had written a letter, dated 4 July 2013, which he gave to Ms. McCarthy when they met the following day when she took his will instructions. That letter made the following points:

Ms. McCarthy wrote an attendance note of the 5 July 2013 meeting in which, amongst other matters, it is recorded that:

Ms. McCarthy wrote to Mr. Hayward on 26 July 2013. With her letter she sent a draft will. In the letter she explained that she enclosed a "precedent" letter of wishes intended to deal with the "personal possessions". She explained that a letter of wishes is not legally binding. She also explained, in some detail, the will provisions. She also said, in the letter:

On 8 August 2013 Mr. Hayward's GP wrote to Clifton Ingram. He said that he had known Mr. Hayward for over 10 years and that he saw him on a regular basis. He said that, in his opinion, Mr. Hayward had full capacity and understood (i) that he was giving his property to persons of his choice on his death, (ii) the extent of his property and (iii) the nature and extent of his obligation to relatives and others. In his opinion "Mr. Hayward is mentally full (sic) capable of making these decisions with full understanding".

On 10 August 2013 Mr. Hayward wrote to Ms. McCarthy correcting an error in her dran letter of wishes.

There is an attendance note, dated 22 August 2013, which records Mr. Hayward's attendance with one of Ms. McCarthy's colleagues when she read through the draft will with him and, Mr. Hayward having no questions, it was executed.

In cross-examination Ms. McCarthy said that, in her meeting with Mr. Hayward at which she took his will instructions, there was no mention about the way Iain had administered Mrs. Hayward's estate. She also said that, at the meeting, Mr. Hayward was very clear and did not appear confused. In relation to Mr. Hayward's harp business(es), Ms. McCarthy said that Mr. Hayward explained that he had given the harp business(es) to Iain but that he, Mr. Hayward, had retained some artefacts from the business which he wanted Iain to have. She also said, in answer to questions from me, that she understood the harp referred to in the letter of wishes to be a personal chattel and that, although Mr. Hayward said that he had given the harp business(es) to Iain, he nevertheless believed that the harp was his to do with as he wanted.

Although I comment further below on Ms. McCarthy as a witness, it is convenient to make the following point here. It is reasonable to suppose that Ms. McCarthy's evidence was based on her attendance note. She has drafted many hundreds of wills since 2013 and it is not suggested that Mr. Hayward was a particularly unusual client. I am satisfied that her attendance note was made contemporaneously and is accurate. Having heard her giving evidence, there is no reason for me to doubt that this is so and the attendance note is consistent with handwritten annotations she made on the 4

Prof. Jacoby is emeritus professor of old age psychiaü•y at the University of Oxford. He has been a psychiatrist since 1974 md is a well-Imown expert witness in testamentary capacity cases. He has given evidence in 27 reported cases. He has also published extensively on testamentary capacity and has contributed to the chapter on the topic in Williarns, Mortimer & Sunnucks: Executors, Administrators and Probate (20^th ed).

In his report Prof. Jacoby said:

In cross-examination Prof. Jacoby said:

He continued, in answer to a question from me:

In his witness statement, referring to the agreement on which he bases his altemative claim, Iain said:

Iain said that he and Fiona checked, over the following years, that the agreement was still in place.

Iain said in cross-exarnination:

In answer to a question from me, Iain said:

Iain was cross-examined as to Mr. Hayward's capacity. He said:

In cross-examination Iain said that Mr. Hayward had not given him any money in relation to his divorce from Renate Tomek.

Iain was cross-examined about how he came to read Fiona's 9 February 2013 email to Mr. Hayward. Iain had said, in his witness statement:

In answer to questions from me he said:

Iain also relied on the evidence of 3 further witnesses.

Ms. Tomek is Iain's ex-wife. Mr. Hewitt, who appeared for Fiona and Jan, did not want to cross-examine her. I permitted Iain to adduce her evidence in writing. She said that she had not received any money from Mr. Hayward at any üme.

Mrs. Toal, a friend of Mr. Hayward, did not attend court. Her evidence was admitted as hearsay evidence. Whilst I have read and considered her witness statement it does not say anything which, to my mind, assists me to determine this dispute; particularly because I formed the clear impression, from reading the statement, that Mrs. Toal was focusing on the period up to the end of 2012.

Mr. Hewitt did not want to cross-examine Mrs. Dove, who was a friend of Mr. Hayward. I permitted Iain to adduce her evidence in writing. She said that Mr. Hayward never had a bad word to say about Iain although, sometimes, he got a bit frustrated with Iain. She said that Mr. Hayward was devoted to his grandchildren and

I was smack by the frank and dispassionate way in which Fiona gave evidence in court. As I have set out, she was cross-examined about the circumstances which caused a rift between her and Mr. Hayward in 2007. This was very much a peripheral issue. More than that, that she sought to procure for her daughter a reference from someone she Imew ought not to give one, with the expectation that its recipient would not discover the truth, did not reflect well on her. It might have been thought probable therefore that she would have sought to present herself in the best possible light when cross-examined on the issue. Nevertheless, Fiona responded on the issue in an open and detached way, freely admitting what she had done and that she knew the reference she had procured from her father was not an acceptable reference.

Nevertheless, I do not accept Fiona's evidence unreservedly or without a degree of caution. It is not inherently probable that, having received and cashed a cheque from Iain relating to Mrs. Hayward's estate just a few weeks before, Fiona had forgotten about it when she sent her 2 April 2013 email to Mr. Hayward. Fiona's evidence was to the effect that she had forgotten about the cheque.

I have concluded that Iain is not a good historian.

In my view it is notable that his recollection, in cross-examination, of the discussions which he contends took place relating to the agreement on which he bases his alternative claim was different to his recollection as set down in his wimess statement. In his witness statement he specifically recalls that, during the first telephone conversation on the matter, Fiona suggested that there should be an equal division of inheritances. In cross-examination he was unable to recall that such a suggestion was made by Fiona.

Nor do I accept Iain's evidence that he had received no money from Mr. Hayward (whether $30,000 or E60,000) in connection with his divorce from Renate Tomek. It is inherently improbable that he received no significant sum of money. There is a cheque book stub, dated 19 October 2004, recording a payment from Mr. Hayward's account to Iain for E60,000. There is an undated letter apparently written by Mr. Hayward which corroborates the payment. Further, I accept Amy's evidence (as corroborated by Fiona) that Iain had confirmed to Fiona that he had received a significant amount (he said 50,000) from Mr. Hayward.

Not only did I not find Iain to be a good historian, I have also concluded that he was not always a frank wimess.

I have already set out what Iain said about the agreement between him and Fiona. To my mind the only reasonable conclusion to draw from Iain's evidence in crossexamination, despite his response to a question from me, was that he was asserting that, during the Chrisünas conversation, Fiona had suggested that she and he should agree that each would look after each other. It is inherently improbable, on Iain's

More significantly, in my view, I did not find Iain to be a frank witness when he sought to explain how he had come to read Fiona's 9 February 2013 email. The explanation given by Iain to Mr. Hayward, in his 13 February 2013 email (and repeated in his 14 February 2013 email to Mr. Hayward), was not frue. Nor is it clear to me that the explanation Iain gives in his witness statement (part of which I have already quoted) is entirely consistent with (or at least it is not as complete as) his eventual explanation to me. More than this, to my mind the reason he gave me for not telling Mr. Hayward the truth is not credible. It would have been simple enough for Iain to say to Mr. Hayward: Father, you will remember that, in 2011, you allowed me to read your emails and, by chance, I came across an email from Fiona to you. Iain's explanation, that Mr. Hayward would not have understood the üuth, is even more troubling when it is bome in mind that he gave Mr. Hayward not obviously straightforward instructions, in his 23 February 2013 email, about how Mr. Hayward might re-access his old email address. I am compelled to add that it took some repeated questioning to elicit Iain's final explanation on the subject of how he had come to read Fiona's email. When I also take into account that, as Jan (whose evidence I accept) told me, Mr. Hayward was upset that Iain had read the email (which was, to a degree, corroborated by Fiona), I am left to doubt whether Mr. Hayward ever gave Iain permission to read his emails and I am left to wonder whether that is why Iain did not tell Mr. Hayward the truth in February 2013.

My assessment of the other witnesses can be briefer.

I found Jan and Amy to be witnesses who gave evidence in a measured way and who were trying to assist me to establish the fruth. Lauren was a hesitant witness. I cannot be certain that her answers were not coloured (even if only sub-consciously) by her (perhaps understandable) wish to support her mother.

Dr. and Mrs. Dennett were impressive witnesses. They have no interest in the outcome of the claim and, from my observation of them, I have no doubt that they recounted to me accurately and fairly what they observed.

It is right to note that Emma McCarthy did not properly explain to me the "golden rule". In Kenward v. Adams, The Times, 29 November 1975, Templeman J had said that, the "golden if tactless rule", was that, if a solicitor was drawing up a will for an elderly testator, it should be witnessed or approved by a doctor who ought then to make a record of his examination ofthe testator. It may also be that Ms. McCarthy did not appreciate why certain steps private client solicitors are encouraged to take are good practice. Nevertheless, I am satisfied, having heard her give evidence, that Ms. McCarthy, when she met Mr. Hayward, was alive to questions of testamentary capacity and, in this case, did actually consider whether Mr. Hayward was displaying any signs of incapacity. I am satisfied, in particular, that she was aware that, to have testamentary capacity, a testator must be capable of knowing the extent of his estate.

Both parties prayed in aid Cockburn CJ's famous dictum in Banks v. Goodfellow (1870) LR 5 QB 549, 576:

The parties also agree that, in relation to the second factor identified by Cockburn CJ, in this case it was enough that Mr. Hayward was capable of understanding the extent of his estate (see per Lewison LJ in Simons v. Byford [2014] WTLR 1097 at [40]).

Mr. Hewitt placed significant weight on Hawes v. Burgess [2013] WTLR 453. At [131 Mummery LJ said:

At [54] Mummery LJ explained that, in these circumstances, there arises a "strong prima facie case for the validity of [the] will". Mummery LJ continued at [57], [60]:

Both parties referred me to Gill v. Woodall [2011] Ch 380 where Lord Neuberger said at [14], [21] - [22]:

Lord Neuberger continued at [64] :

In the context of this plea, there is a matter, arising from submissions of Mr. Curry who represented Iain, which I can conveniently address here. In my view, it is not a requirement of the plea, in all cases, that it must be established that the testator must have appreciated the legal effect of the words used in the document in issue. Suppose that a solicitor drafts a will believing it accords with her client's instructions but, through a drafting error which may be rectified by the court, the legal effect of the words is to divert a gift from its intended recipient to a third party. Suppose too that the solicitor advises or otherwise leads her client to believe that the effect of her drafting is that the intended recipient of the gift will receive it. Suppose too that the client fully and freely considers that advice or information and then approves the words used. I am of the view that it cannot be said, in these circumstances, that, solely because of the drafting error and its legal effect, the testator did not know and approve the contents of his will.

There is perhaps support for this conclusion from what Lord Neuberger said in Gill where, for example, he referred to a testatrix's "likely desires" (see also what Lord Neuberger said at [64], quoted above). There is support for this conclusion from what Lloyd LJ said in the same case at [71]:

In any event, there is further support for ülis conclusion from what Lewison said in Simon v. Byford (supra) at [47]:

There is also academic support for my conclusion. The authors of Williams, Mortimer & Sunnucks (supra) say, at paragraphs 13-41 — 13-43:

Mr. Curry drew my attention to the decision of Rimer J in Re Good dec 'd [2002] EWHC 640 (Ch) and, in particular, [117] where the Judge said:

The parties referred me to Re Edwards dec'd [2007] WTLR 1387. In that case Lewison LJ said:

Mr. Hewitt also relied on Boyse v. Rossborough (1857) 6 HL Cas 2, from which case, it is reasonable to suppose, Lewison J set out the principles I have quoted.

It seems to me that, to succeed on this plea, Iain must satisfr the following to a sufficient degree; namely, (i) that Fiona made a false representation (ii) to Mr. Hayward (iii) about Iain's character (iv) for the purpose of inducing Mr. Hayward to alter his testamentary dispositions and (v) that Fiona made such a representation knowing it to be untrue or being reckless as to its üuth and (vi) that the 2013 Will was made only because of the fraudulent calumny.

The degree to which Iain must satisfr these requirements is not in dispute. The standard of proof is the civil standard but a high degree of proof is needed to meet that standard (see Williams, Mortimer & Sunnucks (supra); paragraph 13-64 and the cases cited there).

In closing Mr. Curry, properly in the light of the evidence, put Iain's case on testamentary capacity in this way. He said that it was possible that Mr. Hayward lacked capacity, in that he was not capable of understanding the extent of his estate, because (i) he was anaemic, (ii) anaemia is capable of causing fatigue and (iii) fatigue is capable of causing a testator to be unable to understand the extent of his estate.

Mr. Hayward does not appear to have known the extent of his estate (in particular, the extent of his retained business) when he met Ms. McCarthy on 5 July 2013 and I have been taken to no evidence that Mr. Hayward knew more accurately the extent of his estate when he executed the 2013 Will. This is not a case where N'fr. Hayward did not apparently accurately merely the value of his estate. On 5 July 2013 he had apparently forgotten what he had apparently remembered only the day before; namely, that he retained a significant part of his business. Mr. Hewitt pointed out that, for example, in Blackman v. Kim Sing Man [2007] EWHC 3162 (Ch), the court accepted that, to have testamentary capacity, a testator does not need to know the actual value of his estate. In the circumstances of this case however, because Mr. Hayward did not apparently know, on 5 July 2013, the extent of his retained business, I do not find that case to be of assistance.

Whilst that Mr. Hayward had apparently forgotten the extent of his retained business within a day of his 4 July 2013 letter is a matter which, to my mind, is capable of raising questions as to Mr. Hayward's testamentary capacity, the issue I must resolve is whether, because of a mental impairment, Mr. Hayward was incapable of understanding the extent of his estate.

I have come to the conclusion that Mr. Hayward was capable, when he gave Ms. McCarthy insffuctions for the 2013 Will and when he executed the 2013 Will, of understanding the extent of his estate and that he did not then suffer from a mental impairment which made him incapable of understanding the extent of his estate (or

I turn to consider Iain's claim of fraudulent calumny. I do so before considering questions of knowledge and approval because the parties' investigation, at trial, into the reasons for the making of the 2013 Will was directed principally to the plea of fraudulent calumny and because my conclusions as to the reasons for the making of the 2013 Will are also relevant to the knowledge and approval issue.

It will be recalled that Iain's case is that, on the proper construction of the statements on which he relies, Fiona represented to Mr. Hayward that Iain could not be trusted and had behaved dishonestly regarding Mrs. Hayward's estate (which, it will be recalled, Iain administered).

Taking into account the background against which those statements were made, I have concluded that those statements do not bear the meaning contended for by Iain and that Mr. Hayward did not tmderstand them to amount to a representation that Iain could not be frusted and had behaved dishonestly regarding Mrs. Hayward's estate. Whatever Fiona subjectively believed she was asserting, to my mind the impression she conveyed, in her 12 April 2013 email timed at 20:51 and in her 13 April 2013 email timed at 11 (where she said "Iain...may take more than he is entitled to", a somewhat equivocal statement), was that she was expressing no concluded view about Iain's Gustworthiness or honesty.

I do think that the statements relied on by Iain, properly construed, amounted to a representation by Fiona that Iain had not efficiently and correctly administered Mrs. Hayward's estate. I am not satisfied that such a representation was (or is) unüue. It is to be remembered that Mrs. Hayward had died in 2008. Whilst there is evidence that, in its initial stages, the adminisfration of her estate was not entirely sfraightforward, there was no evidence before me to establish that, if Mrs. Hayward's estate had been administered efficiently, the administration would have been likely to have continued into 2013, 5 years after she had died. Further, Fiona gave evidence that she had never

If am wrong, and because of the proper construction of the statements on which Iain relies, Fiona is taken to have represented that Iain could not be frusted and had behaved dishonestly regarding Mrs. Hayward's estate, that is likely to be because of the final statement on which Iain relies; namely: "He seems a bit of a chancer who given the opportunity may take more than he is entitled to". If, by this statement, and contrary to the conclusion I have already reached, Fiona is taken to have represented that Iain could not be frusted and was dishonest in relation to Mrs. Hayward's estate, Iain has not saüsfied me to a sufficient degree that such a representation was made by Fiona knowing it to be untrue or being reckless as to its fruth. In other words, Iain has not satisfied me to a sufficient degree that, on 13 April 2013, Fiona did not have an honest belief as to the truth of such a representation. The statement was made almost 2 weeks after Nfr. Hayward had given Iain a dividend cheque and when Iain had not sent any money (or cheque) to Fiona in relation to the dividend. I do not know how efficiently Iain had dealt with previous receipts of money so I cannot conclude that the two week delay in this case was not unusual or concerning.

I have also concluded that Iain's administration of or other dealings with Mrs. Hayward's estate was not a factor in Hayward's decision to make the 2013 Will.

It is possible that the immediate impetus to the eventual making of the 2013 Will was Iain's argument with Mr. Hayward which caused Mr. Hayward to write his 3 May 2013 email suggesting that he and Iain should not meet "for some considerable time". Although Mr. Hayward's written instructions for a new will to Mr. Banky of his previous solicitors are dated 22 April 2013, those instructions were not posted until 7 May 2013 and were received by Mr. Banky, according to an annotation on the instructions, the following day.

I have come to the conclusion that the principal reason, at least, for Mr. Hayward's wish to change his testamentary dispositions and make the 2013 Will was because he had become critical of the way Iain had spent his own money aner Mr. Hayward had transferred part of his business to Iain, in 2009; that is, after the 2008 Will. Ms. McCarthy's evidence was that Mr. Hayward wanted to change his will because he was unhappy about the way Iain spent money. She also said that Mr. Hayward did not suggest that his decision was influenced by the way Iain had administered Mrs. Hayward's estate. Fiona's evidence was to similar effect. This is also borne out by Mr. Hayward's 23 February 2013 email (part of the email exchange about Mr. Hayward's iPad). It is helpful to quote it here again:

I am conscious that, in her witness statement, Amy may be taken to have suggested that one reason Mr. Hayward wanted to change his will was because he was suspicious as to the source of Iain's money and he thought that Iain was wrongly using Mrs. Hayward's estate. However, it is to be remembered that Amy was crossexamined on this matter and she did not make a similar assertion then. In any event, the weight of the other evidence in support of the conclusion I have reached is more than sufficient, in my view, to justify that conclusion.

I have concluded, on balance, that a subsidiary reason for Mr. Hayward's decision to change his will was that he was annoyed with Iain about Iain's dealings with Mr. Hayward's iPad. Although the emails about the iPad are largely limited to February 2013, on 15 April 2013, shortly after the email exchange about Mrs. Hayward's estate, Mr. Hayward raised the subject of his iPad again in an email to Iain and, on 13 April 2013, Mr. Hayward had emailed Fiona: "...He does not seem to know right from wrong i.e. that E700 he charged me in exchange for an iPad that was almost unsaleable and missing the keyboard etc.... ". To my mind those and his 3 March 2013 emails show that Mr. Hayward was angry about the amount he had paid out for the iPad. I also bear in mind that, as I have shown, Mr. Hayward's view about Iain's spending habits was linked, in fact, to Iain's dealings with Mr. Hayward's iPad.

For all these reasons, Iain's case based on fraudulent calumny fails.

Mr. Curry put Iain's case on knowledge and approval in this way.

He contended that this was a case in which the court should be careful before being satisfied that Mr. Hayward knew and approved the 2013 Will because Fiona was insüumental in the preparation of Mr. Hayward's initial written instructions to solicitors, including Mr. Hayward's 4 July 2013 letter.

I can deal with this suggestion briefly. There is no evidence that Fiona was instrumental in the preparation of Mr. Hayward's written instructions to solicitors. I have concluded that she was not instrumental in their preparation. Fiona's evidence was that she positively distanced herself from the arrangements for, and more general discussions about, a new will. I accept that evidence. To my mind this evidence is consistent with two matters:

It may be said that I should be carefrl before concluding that Mr. Hayward Imew and approved the contents of the 2013 Will (i) because I have found his decision to make

Mr. Curry further contended that Mr. Hayward did not know and approve the contents of the 2013 Will because he did not appreciate that (i) a letter of wishes is not binding (so that the gift, to Iain, of the "Harp music business" was not a binding gift as Mr. Hayward intended) and (ii) by the clause of the 2013 Will to which the letter of wishes related, Mr. Hayward had only given to his trustees his personal chattels and so they could not deal with the Harp music business, in any event, under the terms of the letter of wishes.

I have already found that Mr. Hayward was capacitous and there is no suggestion that the 2013 Will was not properly executed. Whilst the 2013 Will represented a departure from Mr. Hayward's previous wills, as I have already found, Mr. Hayward chose to exclude Iain from any interest in his residuary estate principally because of the way Iain handled his own money even after Mr. Hayward had given Iain part of his business. Most importantly:

Do Mr. Curry's further contentions mean that Mr. Hayward did not know and approve of the contents ofthe 2013 Will? I have concluded that they do not.

lhe first of Mr. Cuny's further contentions can be dealt with briefly. Ms. McCarthy's

As to Mr. Curry's second further contention, a probate court is not a court of documentary consfruction. It would not be appropriate therefore for me to express any concluded view about whether Mr. Curry is right that the Harp music business did not pass to Mr. Hayward's frustees to deal with in accordance with the letter of wishes. However, even if Mr. Curry is right as to proper construction of the 2013 Will, that would not affect my conclusion that Mr. Hayward knew and approved its contents. It seems to me that Mr. Curry's complaint is no more than that, because of a drafting error, the legal effect of the 2013 Will is not to make a gift of the Harp music business to Iain. In the context of this case, that is not enough, I have concluded, to call into question the validity of the 2013 Will. The only reasonable inference which can be drawn from a combination of (i) Mr. Hayward's instructions to Ms. McCarthy, (ii) the terms of her 26 July 2013 letter, (iii) his receipt of her 26 July 2013 letter together with the draft letter of wishes in the terms, (iv) his consideration of Ms. McCarthy's letter and that draft letter of wishes and (v) his execution of the 2013 Will and his signing of the letter of wishes, is ffat he knew what was in those documents and he freely accepted them as representing and giving effect to his testamentary wishes. For the reasons I have already given, that is enough to satisfr the knowledge and approval requirements in this context.

I tum, finally, to consider Iain's alternative claim based on his agreement with Fiona.

I prefer Fiona's evidence on this matter to Iain's evidence. I accept Fiona's evidence that she did not know what Mr. Hayward's testamentary intentions were in 2007. There is no evidence that, in 2007, Fiona knew what Mr. Hayward's then existing will said. That she did not know, is consistent with her not wanting to know Mr. Hayward's testamentary intentions in 2013. It strikes me that Fiona's concem in 2007 was to ensure that, out of pique, Mr. Hayward did not change his will so stopping her inheriting what he had left her in his then existing will. Because she did not know what was in that will, Fiona's version of what was discussed in 2007 is more inherently probable than Iain's version. Because (i) as I have already explained, I have concluded that, in cross-examination Iain effectively asserted that Fiona had suggested that they should look after each other and (ii) I prefer Fiona's evidence to Iain's for the reasons I have already given, I find that, in 2007, Fiona and Iain agreed frat, if Mr. Hayward cut Fiona out of his will, Iain would look after her and vice versa. Bearing in mind in particular, that, as I have found, Fiona did not know what Mr. Hayward's then existing will provided, I also do not accept Mr. Curry's submission in closing that, properly construed, the agreement was nevertheless an agreement to share inheritances equally.

I do not believe, contrary to Mr. Curry's contention, that Fiona admitted that there was an agreement for an equal division of inheritances when she spoke with Iain on 30 January 2014. I accept her evidence that she was fed up with Iain's continued pressing about the agreement. By 30 January 2014, within 3 weeks of Mr. Hayward's death, Iain had raised the subject 3 times. That Fiona was fed up, strikes me as an entirely natural reaction and is entirely consistent with her telling Iain, during the 30 January 2014 conversation, that she felt that he was putting her under pressure. To my

Mr. Hewitt advanced a number of reasons why the agreement was not a contract including (i) that the agreement was too uncertain to be a confract and (ii) that Fiona and Jain did not intend to create legal relations.

In relation to Mr. Hewitt's certainty point, the authors of Chitty on Contracts (32^nd ed) say, at paragraph 2-147:

In relation to the assertion that Fiona and Iain did not intend to create legal relations, Chitty (supra) says, at paragraph 2-194:

Whether because the agreement between Fiona and Iain was, in the light of the conclusions I have already reached, too uncertain to be a contract (so that, to be clear, none of the exceptions to the general rule I have summarised above applies) or whether because Fiona and Iain, by the agreement, did not intend to create legal relations, I have concluded that the agreement is not an enforceable contract.

It follows therefore that I decree probate of the 2013 Will in solemn form of law and I dismiss the Amended Counterclaim.