Face v Cunningham & Anor

This is my extemporary judgment following the trial, over nine days in Liverpool between 13^th and 23^rd October 2020, of a contested probate claim brought by Miss Rebeca Olivia Lucille Face (“Rebeca”) against her sister, Mrs Rowena Eleanor Liesa Cunningham (“Rowena”), and her elder brother, Mr Richard Kaethner (“Richard”), under case number E30LV507. This case raises one interesting issue of law on the burden of proof where an allegation is made that a will has been forged. This extemporary judgment is divided into seven sections as follows: I: Introduction and overview II: The trial III: The witnesses IV: The factual background V: The 2017 will VI: 120 Maryland Road VII: Conclusions. But although this judgment is divided into seven sections for structural reasons and for ease of exposition and understanding, I emphasise that the contents of each section of this judgment have informed the contents of the others. I also emphasise that a great many issues have been raised during the course of this case which are of no, or only peripheral, relevance to the issues I have to decide. The fact that they are not addressed in this extemporary judgment does not mean that the evidence relating to them has been overlooked.

If the late Sir Arthur Conan Doyle, or his worthy modern-day successor Mr Anthony Horowitz, were to write up the events which have led to this present, unhappy litigation, they would no doubt have titled the resulting chronicle “The Case of the Missing Original Will”. Sadly, this is the fourth significant contested probate claim involving one or more self-representing warring siblings upon which I have had to adjudicate in the Business and Property Courts in Liverpool within the space of the last two years. This case concerns the estate of the late Mr Donald Charles Face, who died in hospital at King’s Lynn, Norfolk, aged 73, late on 2^nd October 2017. Mr Face had originally occupied a property at 18 Wray Crescent, London N4 which he had inherited from his mother and which he had occupied with his only son, the second defendant, Richard, who is now 47 years of age. Following a dispute with his son over his occupation of that property which led to litigation between them in the Edmonton County Court which was compromised on 15^th February 2006, that property was sold. With the sale proceeds, Mr Face purchased a flat at 120 Maryland Road, Wood Green N22 as a home for Richard and a property near Downham Market in North-West Norfolk known as True Blue which Mr Face occupied as his home until his death.

In addition to his son Richard, Mr Face had two daughters Rowena (who is now aged 40) and Rebeca (who attained the age of 39 during the course of this trial). Upon Mr Face’s separation and divorce from his wife many years ago, Richard had gone to live with his father whilst Rowena and Rebeca had remained with their mother. Mr Face himself described his relationship with his family to his solicitor, Mr David Pearl, as “dysfunctional”, and this description was adopted by Rebeca’s partner, Mr Stuart Neal (“Stuart”) when he gave evidence to this court.

By a claim form issued in the Business and Property Courts in Liverpool on 25^th October 2018 Rebeca claims to propound an alleged lost will of her late father dated 7^th September 2017. The original of this handmade will has never been located, but Rebeca claims to have found a photocopy of this will, printed on the front and reverse

The first defendant, Rowena, contends that the 2017 will is a forgery concocted by Rebeca who has conspired together with the two attesting witnesses, aided and abetted by her partner, Stuart. Rowena contends that her late father died intestate and that all three siblings are entitled equally to Mr Face’s estate on intestacy. The second defendant, Richard, originally contended for a will made in the second half of 2016 but at an early stage of this trial he accepted - in my judgment entirely sensibly and correctly - that there is no documentary or other reliable evidence establishing either the fact or the contents of this 2016 will and so he no longer seeks to propound any earlier will than that contended for by Rebeca. Richard, too, disputes the genuineness of the 2017 will, and on that basis Richard too now contends for an intestacy. But Richard also claims to be entitled to the whole, or alternatively a 51.97% interest, of or in 120 Maryland Road, which has been his home since about 2006. Richard contends that he was originally entitled to a 48.03% interest in this property, representing the proportionate share of the original £206,000 purchase price paid for the property by his father, by virtue of a handwritten contract dated 15^th February 2006 whereby he agreed to vacate 18 Wray Crescent in return for a gift from his father of £100,000, to be applied in the purchase of a home for Richard. Thereafter, on 3^rd August 2016, Richard contends that his father signed a written agreement to settle the property on protective trusts for Richard and his family. Richard seeks the specific performance of that agreement or damages for its breach.

Although she originally instructed Liverpool solicitors, Gregory Abrams Davidson, to act on her behalf, for much of this litigation Rebeca has acted as a litigant in person, although she has at various hearings been represented by Mr Graham Sellers (of Chancery counsel), frequently on a direct access basis. Rowena has throughout been represented by the firm of Hendon solicitors, Pearl & Co, who were the solicitors who had previously acted for her late father in a dispute over the repeated incursion of water into 120 Maryland Road from an adjoining flat, and also in connection with instructions received during the latter half of 2016 concerning the possible disposition, whether outright or by way of trust, of Mr Face’s interest in 120 Maryland Road, and also in connection with the drafting of a will for Mr Face. At this trial Rowena has been represented by Mr Paul Lakin, (also of counsel). Richard has at all times acted as a litigant in person.

This case has been the subject of a considerable number of interim applications and case management orders. In Rowena’s trial bundles I have counted no less than seven orders made by me and four orders made by Business and Property Court District Judges. In addition, I know that early on in this litigation I made at least one further order appointing an administrator pending suit to the late Mr Face’s estate. On 1^st

Unfortunately, although Rebeca had wished to assume the responsibility for producing the trial bundles, due to an unfortunate series of mishaps the court has ended up with one set of trial bundles from her, extending to 14 lever-arch files and some 4,500 pages, and a further set of 5 lever-arch files, extending to some 1,600 pages, from Rowena’s solicitors. Neither set of bundles contains a complete, chronologically assembled series of letters, emails or text messages, and navigating the various bundles to obtain a full picture of events has been a complete nightmare.

One of the most telling pieces of evidence in this case are Mr Face’s handwritten daily journals recorded in one-page-to-a-day diaries. The court has the original journal for 2016, but only selected photocopy extracts from the crucially relevant 2017 journal. There are 10 entries for January – 1^st, 2^nd, 5^th, 6^th, 9^th, 10^th, 23^rd, 24^th,

When the trial commenced on the morning of Tuesday 13^th October 2020 the court was faced with a number of preliminary applications, both formal and informal. These were the subject of an extemporary ruling delivered that morning (to which reference may need to be made). Amongst other things, and for the reasons set out in that ruling, I permitted a very late application by Rowena, dated 1^st October 2020, to admit in evidence a witness statement from Mr Kenneth Samuel Burns, dated that day, which was only served a few days before this trial was due to begin. As a condition of the reception of this late statement in evidence, I permitted Rebeca to call her partner, Mr Stuart Neal, to address this late witness statement by way of oral evidence.

On the afternoon of day 1 of the trial I heard from the two attesting witnesses to the 2017 will, Mr Lee Humphreys (for about 2 hours) and his partner Miss Sally McKenna (for just over an hour). Both gave their evidence in person. On the morning of the second day of the trial I heard, again in person, from Rebeca’s partner, Mr Stuart Neal, for about an hour and 40 minutes, of which about 55 minutes comprised his evidence-in-chief, after which there was a 15-minute break before he was cross-examined, first by Mr Lakin, and then by Richard. On the afternoon of day 2 and the whole of day 3 of the trial I heard in person from Rebeca for a total of about 7 hours, of which about an hour and 20 minutes on the afternoon of day 3 of the trial comprised Rebeca’s response to questions from the bench.

On the morning of day 4, I heard, remotely by Microsoft Teams, from two of Rowena’s witnesses: first from Mr Kenneth Burns, who gave evidence for about an hour concerning enquiries recently instigated by Rowena and directed towards establishing a link (through Stuart Neal) between Rebeca and the attesting witnesses to the 2017 will; and then again for about an hour from Mr Mark Taylor, who is the Managing Director of Inheritance Legal Services Limited, which offers will-writing services from shops in Cambridge, Ely and (in 2017) King’s Lynn, although the latter office is now closed. On the afternoon of day 4 of the trial and continuing after the weekend on the morning of day 5 I heard evidence in person from the first defendant, Rowena, for a little over 4 hours in total. For the remainder of that morning and the whole of the afternoon of day 5 I heard evidence in person from Mr David Pearl, Mr Face’s solicitor, who was briefly recalled the next morning (at my direction) to answer one additional question which I had omitted to put to him on the previous day. Mr Pearl gave evidence for about 3¼ hours in total.

On day 6 of the trial I heard in person from the second defendant, Richard, who was cross-examined by Mr Lakin for the remainder of that day. On the following morning, day 7 of the trial, Richard was cross-examined by Rebeca for about 1½ hours, and he then briefly re-examined himself. Richard’s evidence effectively took

Exceptionally, either at the beginning or at appropriate points during the course of their evidence, I had to warn no less than six of the witnesses – Mr Humphreys, Miss McKenna, Mr Stuart Neal, Rebeca, Mr Burns and Rowena – about the privilege against self-incrimination: that they were not obliged to answer any questions that might tend to incriminate them in any criminal activity or conduct, but if that any of them declined to answer any questions, appropriate inferences might be drawn from their refusal to answer. None of the witnesses sought to avail themselves of that privilege.

There is also before the court the expert opinion evidence of a forensic document examiner, Mr Stephen Cosslett, who was instructed as a single joint expert. It is his expert opinion that the evidence is inconclusive as to whether or not the late Mr Face signed the 2017 will. Mr Cosslett was unable to offer any reliable opinion as to whether or not the signature of Mr Face on the 2017 will was genuine or a forgery. Mr Cosslett had found no evidence to support the proposition that the disputed signature on the 2017 will had been transposed from some other document using a cut-and-paste method, but he could not exclude such a possibility. Mr Cosslett also gave evidence that both the printed and the handwritten entries on the original copy will had been produced using an inkjet printer.

On Friday 23^rd October, which was day 9 of the trial, I heard closing submissions. At the court’s direction, Rebeca addressed me first on the issue of the validity of the 2017 will. I did not need to call on Mr Lakin or Richard to respond to Rebeca’s submissions. I then heard from Mr Lakin, from Rebeca and from Richard (in that order) on the issue of the beneficial interests affecting 120 Maryland Road. At about 12.40 p.m. I adjourned until 10.30 this morning, Wednesday 28^th October to read back through my 180-odd pages of notes and to map out this extemporary judgment.

This is a case that turns largely upon the reliability and the credibility of the witnesses. For reasons that will become apparent during the course of the following two sections of this judgment, I totally reject the evidence of Mr Humphreys and Miss McKenna. It is inherently incredible, and I am sure that it is pure fiction. It cannot be reconciled with the picture of Mr Face that is produced by the reliable evidence presented by the journals, by Mr Pearl and by the Langleys. The only question is why Mr Humphreys and Miss McKenna should be prepared to lie so outrageously to the court. The answer is supplied by the investigations undertaken by Mr Burns, whose disinterested evidence I find to be wholly reliable.

Inspired, apparently, by an observation from me at the pre-trial review about the need to establish collusion between the claimant and the attesting witnesses if the 2017 will were successfully to be contested, and somewhat late in the day, Rowena instigated a line of enquiry which produced Mr Burns, who in turn established a connection between Mr Neal and Mr Humphreys. Despite their denials, I am satisfied that during 1998 they had both been serving with the Royal Electrical and Mechanical Engineers (REME) (in which Rebeca was also later to serve, as an armourer, between May 2000 and August 2008) in neighbouring military bases in Germany, and that they had got to know each other there at that time. On 23^rd July 2018 I find that Mr Neal placed a social media posting on a private REME Facebook site seeking to locate Mr Humphreys. I acknowledge that there is no direct evidence that Mr Neal succeeded in making contact with Mr Humphreys at that time, but I am satisfied that this is what happened. Through Mr Neal, Mr Humphreys and his partner were enlisted to assist Rebeca in witnessing the forged will which she has produced purporting to be that of her late father. It was no coincidence that the will was purportedly witnessed in Cambridge, where Mr Humphreys and Miss McKenna were living; Cambridge was selected as the venue for the purported execution of the will because it fitted in with the attesting witnesses’ home address. I reject the evidence of Mr Neal - who as well as giving evidence was present throughout the course of this trial - that the Facebook account visited by Mr Burns was either a dormant account belonging to Mr Neal, which had not been used since about 2014, or that it was a newly created account falsely represented as belonging to Mr Neal. I am satisfied that the photograph of Mr Neal and his two sons was posted to that Facebook account by Mr Neal. I reject his evidence to the contrary. I am satisfied so as to be sure that between 23^rd July 2018 (the date of Mr Neal’s social media posting) and 10^th August 2018 (the date Rebeca allegedly discovered the copy 2017 will at True Blue) Rebeca and Mr Neal conspired together with Mr Humphreys and Miss McKenna to seek to pervert the course of justice by producing a forged will which they falsely and knowingly represented to be the last will of Mr Face.

In my eventual order I will direct that a transcript of this judgment is to be procured at public expense and referred to the Crown Prosecution Service. I am satisfied that Rebeca acted in this way because of her deep dislike of her two siblings (about which she is entirely open) and because she feels that her father let her down very badly at the time of his divorce by abandoning her and Rowena with their mother in the full knowledge that they would suffer abuse at her hands. In answer to questions from the Bench, and close to tears, Rebeca described her mother as a “brutal woman” and said that she (Rebeca) suffered from complex PTSD. It is not possible, nor would it be appropriate, for me to make any findings in this regard; but Rebeca clearly had a motive for trying to extract money from her late father’s estate. Indeed, I accept the disinterested evidence of Mr Paul Langley that Rebeca had tried to involve him in making a claim against that estate. Having viewed Rebeca, both in the witness box for some seven hours and throughout this trial, particularly during her sustained and aggressive cross-examination of her sister Rowena, I am satisfied that I cannot accept Rebeca as a witness of truth, and that I should reject her evidence except where it is supported by other evidence which I find to be reliable. I am sure not only that Rebeca has forged the 2017 will but that she has also fabricated at least the first page of the letter from her father of 4^th May 2017, referring to having made a will the previous day, and that her account of the discovery of the copy 2017 will is a total fiction. I am satisfied that it was Rebeca who removed the 2017 journal from True Blue and who produced a selection of photocopy extracts, suppressing those which might tend to demonstrate the falsity of her claims that her father had made wills on 3^rd May and 7^th September 2017, and also concealing evidence of the monies that she had received from her father on 14^th February 2017.

I find that Mr Taylor was a wholly credible and reliable witness who was genuinely doing his best to assist the court and I entirely accept his evidence. The same applies to Mr Pearl who, when the discrepancy between his attendance note for 18^th July 2016

Where there is any conflict between the evidence of Mr Pearl and the recollection of Richard, I prefer Mr Pearl’s evidence. Thus I find that Richard is mistaken in his evidence that he kept the appointment which his father had made for him to see Mr Pearl on Friday 22^nd July 2016. I am satisfied that their meeting took place on the morning of Monday 3^rd August. However, I also find that nothing turns on this. I also accept Mr Pearl’s account of his meeting with Mr Face and Richard on Wednesday 5^th October 2020 which Mr Pearl described (in cross-examination by Richard) as probably “the strangest meeting” he had ever had, leaving both Mr Face and Mr Pearl “dumfounded”. It is clear that Mr Pearl felt genuine sympathy and pity for his client, Mr Face. I found Mr Pearl to be a competent, compassionate and caring solicitor who was genuinely concerned that his client should not die intestate, but who was faced with a client who simply could not make up his mind what to do for the best for his avowedly “dysfunctional” family, whilst also seeking to avoid paying more by way of tax than he possibly could. Mr Face’s observation that Mr Pearl “once again started pushing about my will” in his diary entry recording their meeting on 6^th July 2017 should be read in that context.

I utterly reject Rebeca’s evidence that her father found either Mr Pearl’s letter of 19^th October 2016, or his draft will, to be (quoting from Rebeca) “completely unacceptable” and that he was “absolutely furious” or that he “refused point blank to sign it because he did not want it”. I am satisfied that this is an example of Rebeca seeking to foist her own strongly held views on to others, in this case her father. There is no support for this alleged sense of outrage in the journal entries (of which there is a complete run in 2016). Indeed, Mr Face records, without adverse comment, having sent a cheque to Mr Pearl for his services on Wednesday 2^nd November 2016; and Mr Face had a further meeting with Mr Pearl on 16^th January 2017 to discuss the leaks afflicting 120 Maryland Road. (No journal entry has been produced for this

Mr Leszek Pracz was a wholly reliable and credible witness whose evidence I accept and who was seeking in his evidence to assist the court to the best of his ability. I accept his evidence.

Mr Paul Langley was a wholly credible witness whose evidence I accept save for the suggestion that the brown envelope that was retrieved from the beam at True Blue in the early hours of the morning of Tuesday 3^rd October 2017, shortly after the death of Mr Face, had contained any will made by Mr Face. Mrs Deborah Langley was a voluble witness who was difficult to control; but her knowledge of a third paper in the brown envelope appeared to have been derived from what she had been told by her husband. Both of these witnesses gave evidence, which I accept, that Mr Face would never have travelled to Cambridge without telling them that he was going there, or without telling them that he had been there upon his return. Indeed, Mr Langley made it clear that, following an earlier burglary at True Blue, if Mr Face was going to be away from home for more than an hour or two he would always call by and ask one of the Langleys to keep an eye on the place. I accept Mr and Mrs Langley’s evidence that they were never told of any trip to Cambridge by Mr Face or that he had executed a will there. Mrs Langley also mentioned that Mr Face would never go anywhere without his baseball cap, which he would wear all the time, even indoors. Again I accept this evidence. I also accept the evidence of Mr and Mrs Langley that after her father’s death, Rebeca was seen at True Blue on a number of occasions, and that she had had the opportunity to remove items from that property. However, much of Mrs Langley’s other evidence I found to be confused and confusing, and to be motivated by supposition and conjecture on her part.

Where the evidence of Mr and Mrs Langley differs from that of Rowena, I prefer, and accept, Rowena’s evidence. I find that Mr and Mrs Langley both assumed that the brown envelope would contain a will because at some point Mr Face had suggested appointing Mrs Langley as an executor, and because he had said that the envelope was to be consulted after his death and contained his wishes. Both Mr and Mrs Langley jumped to the conclusion, which I am satisfied was incorrect, that the envelope would contain a will of Mr Face. I find that the envelope did contain three pieces of paper, as Mr and Mrs Langley repeatedly stated, but that there was no will amongst them. There were two, two-sided pages headed: “People. Their [spelt “there”] partners and children to be notified of my death.” These two pages were retained by Mrs Langley after she had photographed both sides for Rowena using her mobile phone. (It should be noted that this list of contacts refers to Rowena as “Rowena EL Face”, with no reference to her married name of Cunningham.) The third sheet of paper was the instructions for Mr Face’s burial, which had been handwritten by Rebeca. This was retained with the envelope by Rowena and was later handed in to the court during the course of the trial. Copies of all three documents can be found at claimant bundle 9, pages 149-153.

When Rowena contacted Mrs Langley by text on 6^th October (claimant bundle 11, pages 240-242) to ask who had put this third sheet of paper together for her father, Rowena referred to this third sheet of paper as “the other letter that was in the brown envelope with the list of contacts (could call it instructions on death)”. When asked by Mrs Langley to identify the letter, Rowena sent her an image of the manuscript instructions and asked: “Do you know who wrote this for Dad?” to which Mrs Langley replied: “Yes, your sister Rebeca”. I accept Rowena’s evidence that although she had recognised her sister’s handwriting on the letter, she had been confused by finding instructions for her father’s death, written in her sister’s hand, at her father’s house, and that she had been seeking confirmation as to the authorship of this handwritten document.

I find Mr Philip Langley to be an accurate and reliable witness. I accept his evidence that Rebeca was not inside True Blue for more than about 5 to 10 minutes on the night of 10^th August 2018, and that she was not wearing any jacket. However, I make it clear that this evidence has not contributed to my conclusion that Rebeca has given a false account of her alleged discovery of the 2017 will at True Blue that night and that it is merely supportive of a conclusion at which I have arrived independently of Philip Langley’s evidence.

I find that Rowena was an entirely honest and, on the whole, reliable witness, who was trying to do her best to assist the court. The more she was subjected to a sustained, and aggressive, cross-examination by her sister, the more patently honest and genuine her evidence was demonstrated to be. I acknowledge that in an order I made on 29^th October 2019 I directed that no reference was to be made to a judgment of the Family Court in proceedings concerning Rowena’s children by her first marriage (upon which Rebeca sought to place reliance) save for mentioning that there was a judgment of the Family Court which pre-dated the 2017 will in which it was found that Rowena had never wanted her children to have any contact with their father, and that she had constantly, and repeatedly, tried to stop, or undermine, the time the children spent with him. I have borne Rowena’s conduct in the family proceedings, and how it was viewed by her father in his journal entries, firmly in mind. At one point in her sustained cross-examination of her sister, Rebeca suggested that Rowena was “a consummate actress”. I reject any submission that Rowena was “acting” when she gave her evidence before me. There was some criticism, particularly from Rebeca, and from Mr and Mrs Langley, of Rowena for having consented to the withdrawal of further treatment for Mr Face on the night of his death. It is only fair to Rowena to record that I accept her evidence that she was told by the treating clinicians that treatment had to be withdrawn. Rowena had previously sought, unsuccessfully, to contact Rebeca with news of their father’s condition, calling at her home on the journey down to Norfolk, and, when Rebeca did not answer the door, leaving a manuscript note timed at 2.30 p.m. (claimant’s bundle 7, page 59). Rowena had also sought, again unsuccessfully, to contact Richard by phone. I accept that Rowena asked the clinicians for time to locate Richard but that they refused her request. I am satisfied that Rowena did the very best that she could for her father in the difficult circumstances in which she found herself on that night. Following her father’s death, Rowena followed Mr and Mrs Langley to True Blue in her car, arriving in the early hours of the morning. As previously indicated, I accept Rowena’s account of the contents of the brown envelope. I find that Rowena did not remove any will from True Blue, nor did she remove the 2017 journal. It is clear from the text message at claimant bundle 11, page 244 that she left True Blue to return home at about 7.07 on the morning of Tuesday 3^rd October 2017.

I acknowledge that Rowena has made a few errors in her evidence and recollection; but I am satisfied that these were genuine errors on her part and that she has not in any

Richard was subjected to a wide-ranging and sustained cross-examination by Rebeca which went as far back as a week’s stay he had spent with Mr and Mrs Mike and Sue Knapman in Devon in August 1987, when Richard must have been aged 13. Richard clearly looks at the world differently from most other people. Richard does not seek to put his own interpretation on propositions and questions put to him but rather he tends to seek further clarification of what is meant; and this can create tensions with those who seek to react to, or to converse with, him. Rebeca had told the court that she had been diagnosed as being on the autistic spectrum. She said: “I am autistic, quite blunt”; and I had wondered whether the same might be true of Richard; but he told me - and I accept - that he has not received any similar diagnosis. I am satisfied that Richard was, at times, mistaken in his recollections, such as in his insistence that he had attended Mr Pearl’s offices on 22^nd July 2016. But I am also satisfied that Richard would not deliberately lie to, or seek to mislead, the court. I am satisfied that it was not he who removed the 2017 journals from True Blue. I am satisfied that Richard has not concealed or destroyed any will made by his late father. I am satisfied that he has found no such will. I am satisfied that Richard did not coerce his father into signing the 3^rd August 2016 contract however odd I find his conduct in, first, covertly recording his father’s words, and then, with his father’s permission, videoing him holding the signed contract on the steps outside 120 Maryland Road, and acknowledging both the date of the agreement and the fact that it was entirely voluntary. At the beginning of Richard’s evidence, I listened to the audio recordings and I viewed the video on Richard’s laptop, and the written transcripts of these recordings (exhibits RK 122 to RK 124 in claimant’s bundle 12, pages 82-88) would appear to be a fairly accurate record of them. Where Richard’s evidence differs from that of Rebeca, I prefer Richard’s evidence.

This begins with a letter that was sent to each of Rebeca and Rowena by Mr Paul Langley. The letter is undated but Mr Langley told me that it was sent by recorded delivery on 17^th June 2016 and I accept Mr Langley’s evidence on that point. The letter was written, as it states, without Mr Face’s knowledge. The copy of the letter sent to Rebeca is at claimant’s bundle 4, page 167. Mr Paul Langley stated that he was writing to Rebeca about her father without his knowledge. He explained how his family had met Mr Face (to whom he refers as “Don”) when he had moved into the area several years previously and they had since become friends. He stated that he had been very concerned about Mr Face’s health as it had gone downhill rapidly over the past year and continued to do so rapidly. Mr Face was said to refuse to go to his GP because Mr Face did not get on with him. The letter continues:

“Over the years we have learned that none of Don’s children have anything to do with him. Don says he doesn’t know what he has done to upset them (only you know if that is true or not). He is worrying himself silly over who gets what when he dies, and desperately wishes to have contact with each of you/all of you so that you can tell him what you would like of his assets. If you could find it possible to contact him in some way just so that he is able to explain a few things to you and maybe you can explain a few things to him, and to let him know of anything that you would like. He also has his house at Ten Mile Bank (un-mortgaged and worth quite a bit), and a considerable sum of money in the bank that he wants to divide up between you all, to as he says improve all your lives.”

Mr Langley goes on to attempt to persuade Rebeca, and presumably also Rowena, to contact their father; and he gives them their father’s address, phone number and email. The letter concludes:

“I apologise if you think I am intruding in your affairs but if any bridges are to be mended with you and your father, time is running out fast. Also if Don has no one to leave his possessions to, either the government or some other third party is going to be somewhere around half a million or more better off. Do you want that to happen?”

Consistently with Mr Langley’s evidence that he did not tell Mr Face that he was sending this letter, there is no reference to it in the 2016 journal.

On 5^th July 2016 Mr Face apparently wrote to both Rebeca and Richard. The letter to Rebeca is in claimant bundle 4 at page 163. It reads:

“Dearest Rebecca [sic],

A couple of months ago I became very weak, to the point where I had to have assistance to have a bath. On the 23^rd of May, I was taken to hospital by ambulance due to breathing difficulties. The above gave me a sharp reminder that I must try and get things sorted out, relevant to my estate for you and Richard.

As I am sure you are aware, when someone passes away, their next of Kin normally sort out the Estate, Funeral, Probate, etc. When this condition arrives, you, and Richard, will need to be able to contact each other, with this in mind I will send Richard’s Address to you and your address to Richard. This I will not do until the beginning of August, giving you time to send to me a logical reason why I should not do this. Richard will be receiving a similar letter.

I sincerely hope life is all you want it to be.

Dad xxxxx

All my love.”

In his journal entry for 5^th July 2016 Mr Face writes:

“Posted letters to Richard and Rebeca saying I would give their addresses to each other at the end of the month unless they have good reason for me not to.”

On Tuesday 12^th July 2016 there is the first of Mr Pearl’s attendance notes:

“Mr Face telephoned. He made an appointment to meet with me on the 18^th July. He said he was going to meet me together with his son Mr Kaethner.”

The journal entry for that day reads:

“Afternoon phoned Pearl & Co Solicitors and made an appointment for Rich on 18^th at 3.30… Visited Langleys about 5.45. Left about 7. Deb kept talking about the conditions Richard’s living in and kept repeating herself. I had to keep repeating that I have done all I can to help him. I am feeling exhausted.”

There is an attendance note of Mr Pearl’s on Monday 18^th July 2016:

“I received a call from Mr Face. He said that his son Richard wants the property at 120 Maryland Road to be held in Trust. I explained that transferring a property into a Trust may not be tax efficient, but if he wishes to do so he could transfer it to him. However this would not be the best method because it would not qualify as a potentially exempt transfer for IHT purposes.”

The journal entry for 18^th July reads:

“Phoned solicitor and told him that Rich wants the house held as a trust. Solicitor tells me this is no good for tax saving. Richard had phoned asking me to phone the solicitor. He also told me that more water was coming through the ceiling. He believes there is also faeces… Tried to phone Rich in the evening. NA [no answer]… Visited Langleys for a couple of hours in the evening. Paul, Deb and Craig were there, Carina, Ruby, Paula, Ned Langley and BJ all arrived. As usual it was difficult to complete a sentence, let alone have a discussion.” The journal entry for 19^th July reads:

“Phoned Rich 4 times between 12 p.m. and 4 p.m. and 3 times between 6 p.m. and 7.30 p.m. NA.”

The journal entry for Wednesday 20^th July reads:

“At last managed to get Rich on the phone. He did not see the solicitor on Monday as I told him to go to the Tottenham office due to me having phoned that number. It seems they forgot to tell me that Richard had to go to the Hendon office. I made another appointment for 3 p.m. Friday at the Hendon office. Thank goodness Rich was okay about all this. Told him about the contractors going to 122 on Tuesday.” The journal entry for Saturday 23^rd July reads:

“After dinner I went to Langleys for a couple of hours. Paul and Deb were out. Craig, Jamie, Ned, Paula Langley, Corina, Ruby and [something illegible] were all there, and of course the dogs. Rich phoned about 8. It seems water is coming through the ceiling again. Said I will phone the estate agents again on Monday. Must also phone Mr Pearl the solicitor to tell him a trust is okay. Said I will phone Derek Fricker to see if he will take part in the trust.”

The journal entry for 24^th July records:

“Phoned Derek. Asked if he would be a trustee for Rich. Said he would think about it.”

The journal entry for 25^th July reads:

“Phone D Pearl to tell him a letter from Rich should arrive soon.”

Mr Pearl’s next attendance note is for Wednesday 3^rd August:

“Mr Kaethner turned up without making an appointment. I spoke with him and tried to explain that a transfer into a Trust would not be efficient from an Inheritance tax point of view. I also mentioned that there might be Capital Gains Tax implications of a lifetime transfer to him. I found it difficult to talk to Mr Kaethner, he would not accept anything I had to say.

I then called Mr Face and reported to him on the meeting.” The journal entry for 3^rd August is as follows:

“Lost most of the morning. Mr D Pearl solicitor phoned telling me Rich arrived without an appointment. Mr Pearl was also concerned about Richard’s way of dealing with things relating to the property. I got ready and drove to Nicole’s who was not at home, so then to Richard. We had a good long talk. Said he had not answered the phone as he has been unwell. I explained to him about why Rowena is not talking to me. I also explained why Jeff is not talking to me. Also told him of ideas I have about helping my children regards their old age. I got home about 9.30. Visited Nicole’s place on the way. She has a new housemate who tells me she is in France. Phoned Patsy to ask if her brother John has any exhibitions at the moment. None. I talked to Rich about doing artwork or printing. Hope he thinks about it. Phoned Mr D Pearl. NA.”

Mr Pearl’s attendance note for 23^rd September 2016 reads as follows:

“I discussed the Will with Mr Face and took his instructions. I asked for details of his family, and he gave me details of his son and two daughters.

The son is Richard Kaethner but he did not know the married name of his daughter Rowena so I suggested that he call her by her maiden name which would suffice. He has another daughter called Rebeca. I took down the full details of his son’s full name, his daughter Rowena’s maiden name and also his daughter Rebeca’s name. He told me about the various bequests which he wished to make of his motor bikes and cars and the rest of his estate would be divided equally between his three children.

The property at 120 Maryland Road would be left to Richard for life then to his wife and then to his grandchildren.

He agreed that I should be his executor because he did not have anybody else. He mentioned that he has a very dysfunctional family. I prepared the draft Will and sent it to him by email together with a client care letter.”

The journal entry for Wednesday 28^th September records:

“Rich and I talked on the phone. He thinks that him getting the house in trust will give the same tax relief as being a partowner. I do not think so. He wants us to meet Mr Pearl about the tax. I intend to talk to the tax people… Spent hours on the computer checking probate and tax. Downloaded some to send to Rich.”

The journal entry for Thursday 29^th September reads:

“Afternoon talked to Rich on the phone. Told him how I am getting tired of life. Made an appointment with Mr Pearl solicitor for Wednesday 5^th October at 1 p.m.”

On 28^th September Rowena sent a letter to her father (at bundle C8, pages 200-201). She described him as “Dad” and simply signed the letter “Rowena”, without any expression of love or affection. The letter reads as follows:

“I received a letter from your neighbour back in June whilst I was in hospital giving birth to your fourth grandchild, Jessica. Your neighbour has asked me to contact you because you would like to know what inheritance I would like. I must admit I was taken aback on many levels receiving this letter.

I don’t have much time to write letters so please accept my apology this is written in haste while Luke and Jessica are having a nap. I will have to be very much to the point without flowery language. I will say this at the beginning that I have not expected to be thought of at all with regards to your will and arrangements you make. In that itself, if it is true, I am grateful. I think you know me well enough to know that I am not a materialistic person and don’t have any interest in taking anything for myself. If there are things that are important to you. Please let me know and I will do what I can.

One thing that I will say in regards to your will. You have four beautiful grandchildren here - Sebastian (12 years old), Natalie (10 years old), Luke (3 years old) and Jessica (3 months old) and my only wish would be if you could think about making life better for them. I can think of only one thing that you might be able to help with them in the future. I will explain. The six of us currently live in a small 3 bedroom house which is situated just off one of the worst council estates in Preston. It has become a nightmare to live there. Just 2 days ago while Luke was playing in the garden, a group of three teenagers decided to go behind the bins on the other side of our fence and take drugs while having the most sordid, disgusting conversations which we could easily overhear. While heavily pregnant with Jessica I have had to chase kids over the fence who were climbing over trying to break in. We suffer drunks outside our bedroom window on a regular basis all night swearing, shouting, fighting. We contact the police, but there’s not much they can do. Where we are living is absolutely awful. I will cut straight to the point - I want my children, your grandchildren, to grow up in a lovely neighbourhood, have their own bedrooms and have access to good schools - Natalie starts secondary school next year and the catchment area that we are in means there is a very high chance she will end up going to one of these awful secondary with these horrible kids. She deserves so much better. And right now we cannot afford to do anything. We can’t afford to move or change the situation that we are in.

Therefore, to answer the question you have asked through your neighbour - what would I like to inherit - my answer is nothing for me, but I would ask you to think about what you could do to improve the life chances of your grandchildren. My dream would be if my family could have a home in a good area and the children all had their own bedroom growing up. Therefore I suppose maybe you could think about providing a sum that could be a substantial deposit for a house with 5 bedrooms that would make the mortgage manageable for us to pay. That is all I can think of. I live for my children and I want the best for them. I don’t want anything for myself. I just want to give them what I never had and if you want to, and are able to help them with that. Please think about it.

I feel awful writing such a letter that is all about this, but I do agree that these things need to be spoken so that everyone understands what each other are thinking. Apologies I don’t have time to proof read this letter so probably contains many mistakes. Rowena.

The journal entry for Friday 30^th September records the receipt of that letter:

“Afternoon. A shock. Received a letter from Rowena saying she received a letter from my neighbour. Tells me she needs money for a deposit on a house and that I now have 4 grandchildren. The letter began with my first name and ended with her first name. No ‘dear’ or ‘love’ anywhere.”

Mr Pearl’s next attendance note is dated 5^th October 2016:

“Attending Mr Face and his son Richard.

We discussed at length the transfer of the property at 120 Maryland Road. We had a very lengthy discussion but for whatever reason Richard seems to have a persecution complex and did not want the property at 120 Maryland Road transferred into his name.

We discussed having a Trust and various options and I also mentioned the tax implications.

Richard Kaethner then abruptly left the meeting. I continued discussing the matter with Mr Face and in particular ensuring that he has a Will to ensure that his assets go where he wishes. He mentioned that he had been divorced and had a very dysfunctional family. He had looked after Richard and his two daughters were looked after by his ex-wife. I felt very sorry for Mr Face at this point because he seemed very alone and very sad.

I mentioned that I could act as his Executor if he wished me to in the absence of anyone else.

I printed off the Will for him to sign but he said he did not want to sign it because he was not sure as to where his assets should go bearing in mind the rather fraught relationships he had with his children. I could not force him to sign his Will this would be something he could only do willingly. If he did not know to whom he should leave his assets then he could always leave it to charity. However, bearing in mind he wishes his son not to be homeless this would be a bad idea and he would be best served leaving him the property as a specific legacy in his Will.

The Will I had prepared left the property at 120 Maryland Road to Richard for his lifetime then to his wife and then to his grandchildren if he has any.

Time spent 1 hour.”

The journal entry for Wednesday 5^th October reads:

“Up early for once at 8.50. Went and collected Richard before going to see Mr Pearl solicitor. We all chatted for about 45 minutes. Rich then asked that he and I go outside to talk. He said I did not understand but would not say why. He then walked away. I completed the chat with Mr Pearl. I then went to the cemetery, having looked for and failed to find Rich, and got some help at the cemetery to find my grandparents. I went to Richard’s home and waited for about 20 minutes until he arrived. We then chatted. He’s now thinking of an offshore company to look after number 120. We agreed to meet Monday or Tuesday to tidy the graves. Called at Langleys on the way home. Deb has agreed to visit Rowena with me.” The journal records on Thursday 6^th October that:

“The rest of the afternoon and evening were spent on the computer trying to find work that Richard might be interested in. Also checked the value of 120 Maryland. Found it has gone up from £206,000 to £400,000.”

The journal for Wednesday 12^th October reads: “Rich said he would phone to wake me between 8 and 8.30. He phoned at about 9.10, just 3 rings, and again at 9.40. I got to Rich about 1.25 p.m. We went to the cemetery and made a start on clearing the graves of my grandparents. We got back to Maryland about 5 p.m. Rich is now talking about registering the house with a company he will set up abroad to avoid tax. Says he will give me the details.”

There is an attendance note from Mr Pearl on 19^th October. It reads:

“Mr Face telephoned. He mentioned selling the property to his son Richard for a nominal sum or for a reduced sum and I said that selling the property at a reduced amount would be deemed to be a gift for tax purposes.”

The final relevant entry in the 2016 journal is on Tuesday 27^th December:

“Linda Fricker phoned today to tell me Derek, her dad, died yesterday. I’ve offered any help they might require, including financial.”

At C4, pages 165-166 there is a letter to Rebeca dated 10^th January 2017. It reads:

“Dearest Rebeca,

I have no idea why you stopped writing to me or why you ran away when I came to your house.

When you first got your house, I gave you some gardening equipment. When you said you were writing a Book I sent you some good quality writing implements. When you told me about the Pig Farm I offered you a Land Rover for free. When you said you needed some farm equipment, I said tell me what you need and I will try to help you. I am sorry there have been times, when you needed help and I did not know.

What I do know is that from the day you were born as my daughter, I have loved you dearly and always wanted to give help when needed, that I am sorry to say was not always possible.

I now wish to offer and give you help that will continue long after I say goodbye to the world. I would like you to have part ownership of my house and home. I wish for this to happen as soon as possible so no other person can make any false claim after I am gone. Should I leave the house to you in my Will, a Will can be challenged in Court and the house could go to another person. If you agree to become a joint owner with me, when I pass away the House automatically becomes yours.

There can be no challenge to ownership.

You would then have a choice, to sell this house or the one you are living in and invest the money, or rent out one of the houses and have a regular income. Renting would give a better income, than any investment which is available right now.

Recently I have been Harshly reminded of just how fragile life can be. I had two very dear friends who I went to school with. Bob Frost who was just a month older than me, who never smoked or drank alcohol at any time in his life, died on his Birthday the14^th April 2016. Derek Fricker, who had the occasional drink but never smoked and was just two weeks younger than me, died on Boxing Day 2016.” The letter continues over the page:

“Please contact me as soon as possible, so that we can discuss me, or give me, authority in writing that you wish to become a joint owner. Should the joint ownership survive for seven years or more, no Inheritance tax will be payable, the house will not even have to be mentioned in probate. Should I not survive for seven years you will still get a tax reduction for the time I have been alive. You could of course sell the house to pay the inheritance Tax if you needed to.

All my Love,

Dad.”

On Thursday 9^th February Rebeca visited Mr Face. The previous afternoon, according to his journal entry for 8^th February, he had worked on the computer about the High Court’s ruling preventing Kris (her ex-husband) from telling him Rowena’s address. The entry for 9^th February reads as follows:

“At lunchtime I received a letter from Rebeca saying she will be visiting me today. This meant I had to tidy the place a little. Rebeca and Stu arrived about 6 p.m. Rebeca insisted I have everything wrong regarding leaving my property when I die. Rest of the time was okay. Think she has some idea about my state of health now. I think we could talk again. They left about 8.15… Got to Langleys about 9.30. Told Paul and Deb how wonderful it was to see Rebeca today. Got home about

10.35.”

In his journal for Saturday 11^th February 2017 Mr Face recorded:

“Rebeca having visited on Thursday made me feel a little better and happier today.”

Rebeca visited True Blue again on 13^th February and apparently stayed overnight, going with her father to his bank at Downham Market on the morning of 14^th February. There are no journal entries available for those two days. The bank statement for 14^th February records that on that day Mr Face transferred £15,000 from his savings to his current account. Two cheques are recorded: cheque no 101250 is recorded as having been debited from the account in the sum of £4,000 on 14^th February; cheque no 101251, in the sum of £11,000, was debited from the account on 21^st February. From those entries, I infer that a cheque for £4,000 was cashed at the bank on 14^th February, and that a cheque for £11,000 was handed over on that day and was cashed subsequently. I am satisfied that that cash, and that cheque, were both handed to Rebeca. Mr Paul Langley said that he himself had never borrowed any money from Mr Face, although his sons had done so. I therefore reject Rebeca’s suggestion that the money was handed over, or loaned, to Mr Paul Langley.

On 1^st March 2017 there is a letter from Mr Face to “Rebeca/Stu”. It reads:

“Thank you, thank you, thank you for your visits on 9^th and 13^th February. I was to say the least very surprised and probably in a state of shock, having little warning of one visit and none about the next. To say you made me happy and elated would be an understatement. During the short time we had together many things were mentioned, but nothing really talked about or discussed. I most sincerely hope that at some time, in the future, the three of us can meet and have enough time to discuss things and clarify them a little.

There is an old saying ‘What you don’t use you lose’. You probably noticed while you were here, that there were no callers or visitors, that is normal. My social life generally consists of calling on the family down the road, once a week for about two hours, sometimes twice a week. Paul who wrote to you, is the Father of the family. This means I have people to talk to for only about four hours a week. What I am trying to say is, that if sometimes my way of putting things seems a bit different, it could be because I do not get much practice these days.

The two of you calling on me made my life seem so much brighter and happier, unfortunately since then a shadow has fallen over my life, I will now explain.

On 13^th Feb you arrived a bit after 6 o’clock, earlier in the day I had written a letter to Rich and posted it. The letter said I would visit him on Tuesday 21^st Feb, if this was not OK to tell me which day would be. Rich did not reply. I went to his home, I spent 15 minutes at the door and got no answer. I

called next door and talked to the Lady who lives there. Said she had not seen him for three weeks. I reported this to the Police. Since then the Police have phoned me twice, but so far no news on Rich.

Sorry to end with some sad news, keep your fingers crossed. Hope my assistance has helped with your problem and that all is OK.”

All of that is in typescript. The letter concludes in manuscript:

“All my love

Dad xxxxx”

The journal entry for Tuesday 21^st February records that Mr Face had left home at about 12 noon to go to the doctors to collect his prescription and that he had then travelled on to Richard’s flat. It records that he arrived at Richard’s address at about 2.15 p.m. By 2.30 Richard had not answered the door and Mr Face therefore talked to the lady at No 118. She said she had not seen Richard for three weeks. Mr Face then records that he went to the police as he was very concerned for Richard. The police were treating him as missing. I must say that the statement about Mr Face’s social life, and its comparative barrenness, does not accord with the entries that I have read in Mr Face’s journals, particularly in relation to his much greater degree of contact with members of the Langley family. The journal entry for 1^st March does record posting a letter to Rebeca on that day. There is, however, no way of knowing for certain whether that is a reference to the letter of 1^st March, the terms of which I have just read out. The journal entry for 2^nd March records that Mr Face received an email from the police complaining about the age of the photographs of Richard and asking for Rebeca’s address. The entry for 3^rd March records that Mr Face wrote and posted a letter to Rebeca explaining that the police could try to contact her. That letter is at C4 page 172 and reads:

“Dear Rebeca/Stu.

In my last letter I told you that Rich had not been seen for three weeks and I had reported this to the Police. Richard has now been missing for five weeks. The Police are making enquiries, including asking for your Address. I have told them that to the best of my knowledge the two of you have not spoken since 2003. They still might want to talk to you, thought it best I let you know.

Hope everything is OK, look forward to hearing from you.” There is then a PS in capital letters in manuscript:

“Could we use a phone?”

On 27^th March Mr Face forwarded an email about the problem of damage to 120 Maryland Road to Mr Pearl. His email to Mr Pearl recorded:

“At last, I have found how to transfer an E Mail. Thank you for your patience with me.”

On Wednesday 5^th April there is a journal entry:

“Received letter from Rebeca asking about Richard and how I am getting on with the E-cig she gave me. Phoned police trying to get more information about Richard and Ruby going to the Philippines. Would only tell me they left on 11^th December 2016. Said they would give British Embassy more info. Started writing to the court about not getting a proper answer to my questions about Rowena. That took until late evening due to me making mistakes on the use of the computer.”

On 12^th April 2017 (claimant’s bundle 7, page 84) there is another letter to “Rebeca/Stu”:

“It was wonderful to have you visiting, a greater surprise I could not have dreamt of. Thank you also for your letter.

I am persevering with the electric smoke, but not getting on to well.

I now know that Richard went to the Philippines on the 11^th December 2016. This means he has been gone for four months. I contacted the British Embassy last week and waiting for a reply.

While you were both here Stu expressed my thoughts exactly, that we need to have a lot more discussion. I realise that travelling between our two homes, takes a lot of time and money. I also recall that you said you do not want me to visit your home or farm. I therefore suggest that at some time in the future, I book a caravan or room not to far from you, for a week, so we can meet and clarify things between us.

While visiting me you mentioned that you have a Legal matter that needs sorting. I would like to help you with this as I do have some experience. I stopped the local council from knocking down in excess of a hundred houses to make an open space. I sued the Police for wrongful arrest, my case was so strong that they settled out of Court. A person tried to sue me for money they had no right to, at the court I showed there Solicitor my written case. The Solicitor then told the Court that there was no case to answer and cancelled the case. Court cases are often won or lost on the preparation of the case. I would be happy to assist if you will let me.

Look forward to meeting you both again, hope everything is going OK.

All my love.

Dad xxxxx”

Unfortunately there are no journal entries from 7^th to 14^th April. The journal entry for Wednesday 26^th April records that Mr Face left for London at about 12.15 p.m. He met “George” at 1.50 p.m.

“Richard took a while to open the door. Then went in and tidied before allowing George and I in. He thought George was a builder and showed him all the damage. Richard also showed me what he considered to be further damage. When I approached Rich about being in the Philippines he denied this and indicated I had just been unlucky when I called. I am going to have to get the surveyors in again. George had to walk out after about 15 minutes talking to Rich. He could not believe how complicated Rich tries to make things … I explained to Rich that the money I have is to pay inheritance tax so that the houses do not have to be sold to pay it.” The journal entry for Friday 5^th May records:

“Printed and posted the letter I have written to Rebeca and Stu.”

At C4, pages 173 and 174 there is a letter printed on two pages which, according to Rebeca, was originally printed on two, separate pages (and not with the second page printed on the reverse of the first). The court does not have journal entries for either 3^rd or 4^th May so all we know is that Mr Face did write to Rebeca and Stu at about this time. I am satisfied that the first page (at least) of this letter is a fabrication and that the author is Rebeca and not Mr Face. The letter reads:

“Good news Richard is back and OK, we have met and chatted. All is well. He denies being in the Philippines.

As you both know, rather than leave you a mess to sort out, I had been writing my Will and I have now written it. I have decided, as the friend I asked has said ‘no’, that you, Rebeca, will be the Executor.

I hope this is not to unexpected, as I have explained Richards behaviour, and actions, towards me, both physically and verbally, over the last year, due to him making me do things I do NOT want to do. This relationship is difficult to explain in writing, he is treating me as some sort of enemy.

I would not ask Rowena, as you will, I have no doubt, understand that communications between us are not possible at this time, and after her last Letter to me, not desirable. I have not included Rowena in my Will for the reasons that will be clear to you after you talk to Kris. Please, Please, Please, communicate with Kris about the children, his telephone number is …”

and this is then provided. The letter continues:

“You said you would not accept ownership of my House while

Richard is keeping his furniture in it. I have offered Richard £3000-00, in purchase of all, ALL, of his possessions in my home. I hope this offer will be accepted soon, my health is not improving and is unlikely to.

I did not ask the Lady, and her Husband, to witness the Will, as I said I would. I love there family, I do not trust them completely, as they do not pay there debts. I met a young couple, last weekend, on holiday, and chatted with them again yesterday, when I was walking along the river bank. I asked them if they would be the Witnesses, I invited them in and we all had Tea. After the Lady insisted that I listen to her jumping from one subject, to another, with no logical connection, they signed the Will.

The next relevant journal entry available to the court is on Tuesday 23^rd May 2017. That records that Mr Face wrote to “Rich and Ruby” and sent a copy of some document about inheritance tax and a cheque for £3,000. Mr Face’s journal entry for 6^th July (a Thursday) records that he got to Richard’s flat at about 2.45 p.m.

“He seemed happy that I had taken a box of his school work and cards, birthdays etc. Told him Rebeca called last week. He asked some questions but made no comments.”

The court does not of course have available the journal entry recording Mr Face’s meeting with Rebeca the previous week. The journal entry goes on to record:

“Went to the solicitors and gave him a copy of the builder’s estimate. Mr Pearl once again started pushing about my will.”

After Friday 7^th July there is no further entry until Wednesday 9^th August. After Thursday 10^th August there is no further entry until Friday 22^nd September. There is however a letter to Rebeca dated 9^th September 2017 (at C4 page 175):

“Dearest Rebeca,

Thank you for your letter. I did not think I would hear from you again, receiving your letter has made me so happy. I offer my sincere apologies, for my part, in our disagreement. I have talked to the Langleys, they have explained how you might feel about the photographs. I did not want to disrespect you, I did not want to take away your privacy, I do not want to own you. I have deleted the photographs on the computer, I sincerely hope, we can continue with our agreement, cooperation, and communication.

You will we will never be an ordinary Father and Daughter, I agree, I hope we can be friends in time, you have done for me, than I thought you would. I would rather fight, over the truth, than whisper, over a lie. Your letter did make me laugh, I had forgotten, about the bathroom problems, when I wrote to you, it would be quite a sight for the neighbours.

I have made some progress here, I met a builder in town, I asked him to write a quote for the staircase, wall and bathroom. he will look at it next week. Can you bring some new particulars with you, for something larger?

In answer to your question, I have worked through one box, with varying results, the colours are not right. The Langleys have agreed to help me, while you are away. Deb certainly seems a lot closer to being her old self.

Since your last visit, I went to see Richard, he did not answer the door, I knocked next door, and talked to the Lady there, she told me some worrying news. I have to alter the arrangements, regarding the legal situation, with Richard and the property.

Look forward to seeing you soon, hope everything is going OK with the sheep.”

The letter is signed (in manuscript):

“Dad xxxxx”

The journal entries available to the court resume on Friday 22^nd September. The entry for Tuesday 26^th September records:

“Rowena phoned and spent an hour saying the problems between her, Kris and the children are my fault, even though we have had no contact.”

There are a few later references to the fact that Rowena’s ex-husband, Kris, arrived with their two children, Sebastian and Natalie, at about 10.45 p.m. on Friday 29^th September. The last entry in the journal was on Saturday 30^th September but it contains nothing of relevance. Poignantly, the page for Sunday 1^st October is blank. At about 11.30 a.m. on Monday 2^nd October Rowena received the telephone call informing her of her father’s condition, after which she travelled to the hospital in Norfolk, via Rebeca’s house in St Helens.

That concludes my recital of the relevant factual background.

I have already recited the terms of this will. In his written skeleton argument Mr Lakin accepts that the burden is on the defendants to establish that the will is a forgery and that the standard of proof is the normal civil standard. For this, Mr Lakin relies

Those four matters are: (1) The very existence of any will at all (2) The terms of the 2017 will (3) The circumstances surrounding the alleged execution of the 2017 will and (4) The circumstances surrounding the alleged discovery of the 2017 will. I will develop each of these features in turn.

First, the very existence of any will at all. As Rebeca accepted, there is nothing in the journal entries that we have to suggest that Mr Face ever actually made any will.

Secondly, there are the terms of the 2017 will. These are utterly incredible. The language, in my judgment, is clearly not that of Mr Face; rather it is redolent of the language used by Rebeca. I am satisfied that Mr Face would not have described Richard in the terms of the will that he is said to have done. I am satisfied that he would not have left Richard homeless. Everything in the evidence demonstrates that

The evidence is also overwhelming that, up until his death, Mr Face had no knowledge that Richard had any child. That may seem surprising to anyone who has not heard the evidence, and encountered the individuals, within this dysfunctional family; but I am satisfied that that was indeed the case. In her evidence to the court, even Rebeca expressed the view that if Mr Face had learned that he might have had a grandchild by Richard, he would probably have wanted to go straight away to 120 Maryland Road to see the child for himself, and to attempt to talk to Richard. The evidence is that the baby and his mother only arrived at Heathrow at 4.50 on the morning of 7^th September 2017, to be met by Richard, who had stayed at the airport overnight to meet them. They then had to journey to Wood Green. Richard’s evidence was that they stayed within his flat all of that day. There is simply no time for the arrival of the baby to have been communicated to Mr Face who, from his journal entries, was certainly not an early riser, and then for him to have travelled up to London to attempt to see Richard, to have returned to North-West Norfolk, to have drafted a will, and then to have made the trip to Cambridge for it to be executed that afternoon. It has to be borne in mind that the date - 7^th September 2017 - was typed into the will on two separate occasions, although on the first it was misspelt. It also has to be remembered that Mr Humphreys had written the date on the 2017 will in manuscript. It was therefore clearly intended to be executed on that day; and it purports to have been executed on that day.

The evidence is also overwhelming that Mr Face always identified his daughter Rowena as “Rowena Face” and not as “Rowena Cunningham”. That was how she was referred to in his 2017 pocket diary. In order to meet this point, Rebeca suggested that Mr Face had been fearful about disclosing Rowena’s true surname for fear that he might thereby be in breach of a court order. Rebeca produced a court order made by Peter Jackson J in chambers on 12^th May 2012. That order included various undertakings by Rowena’s former husband, Mr Karl Wolfgang Christopher

Third, there are the circumstances surrounding the alleged execution of the 2017 will. I am entirely satisfied that Mr Face would not have undertaken the 40 mile drive each way to go to Cambridge to have a will executed. If he had been going to Cambridge, he would have told the Langleys in advance. If he had been to Cambridge, he would have told them that he had gone there. He would have told them that he had executed a will. If he had wanted, for some odd reason, to visit the Inheritance Shop in connection with his will, he would have gone to the King’s Lynn office, or at the very

Finally, there are the circumstances surrounding the alleged discovery of the 2017 will on 10^th August 2018. Rebeca accepted that the red folder was not below the sleeping bag on the bed when she had previously visited True Blue; so someone must have deliberately put it there. The only real candidate is Richard; but why should he put it there and, more importantly, why should he leave it there? In evidence, Rebeca said that before she entered True Blue, Richard had just walked past her carrying two trolley bags “totally stuffed” and with two bags across his shoulders. Apparently, however, having put the red folder under the sleeping bag, Richard had simply left it there, without looking to see what it contained. Rebeca had been able, on a quick perusal in the dark, by torchlight, to identify the red folder as containing the “Evidence against Richard”; and she had also identified it as containing a copy of the will that everyone had been looking for over the previous 10 months. There is no conceivable way that Rebeca should have been able to extract the folder when Richard was unable to do so. Having found the red folder, Rebeca says that she secreted it in the top of her trousers and concealed it by pulling her jacket closed around her. At the court’s suggestion, Rebeca identified how she says she did that. I accept, on the basis of that demonstration, that Rebeca could have carried the red folder out of True Blue in the way that she described but for Philip Langley’s evidence that she was not wearing a jacket below which to conceal it. But even if he was wrong in that recollection, I find it utterly staggering that Rebeca should not have mentioned the discovery of the will to Richard, or to any of the three police officers who were standing outside the property. For the last 10 months everyone had been looking for a will and had not been able to find it. Rebeca says that she had found it, and then she did not mention it to anyone standing outside True Blue.

In the course of her evidence to the court, Rebeca twice described the journey home from Norfolk to St Helens as either “long” or “extraordinarily long” and yet, instead of returning home straight away, Rebeca says that she embarked upon about a 40-mile detour to visit the attesting witnesses without even knowing whether they would still be living, and present, at the address recorded in the 2007 will. The journey to Cambridge takes almost an hour. Rebeca says she was there with them for about 15 minutes and she then set about the 195-mile (or thereabouts) journey home, taking a further 3½ hours. Having got home and attended to the cats and the collie dog, she then drafted and sent an email to her solicitor at 2.33 that morning. The email reads:

“Hi Veronica!

I found the WILL!!!!!!!!!!!!

Well, a photocopy anyway, but it’s still the will!

It’s totally different it’s from September and has Richards kid in it so he must have found out. Rowena and Richard excluded but all grandkids included. I’ve attached a copy for you.

It’s been such a weird day! I went down to sort fish and locks cos I’m just sick of Rowena’s messing about, but when we get down there Richard’s in the house mid-burglary!!! I called the police cos he’s getting a bit aggressive (long story short) 2 Langleys and 3 coppers later I get into the house to get pics of the water damage and what’s left of dad’s stuff and I find dad’s file of ‘Evidence against Richard’ that Richard had hidden and the copy will was in it!

I’ll call you Monday to sort the details

Sorry to ping you so late at night, but too excited not to share the news!”

What is staggering about that email, if Rebeca’s account of visiting the attesting witnesses is correct, is that she does not go on to say: “And, by the way, I went down to Cambridge and I found the attesting witnesses at the address in the will.” The omission to refer to that vitally important fact is absolutely staggering and equally inexplicable. I cannot accept the account of the circumstances in which the 2017 will was found.

I am satisfied, so as to be sure, that Rebeca has forged the 2017 will in collaboration (through Stuart Neal) with Lee Humphreys and (through him) with Sally McKenna. Once the court is convinced, as it is, that the 2017 will is a forgery, it becomes clear that Rebeca has also forged the first page of the letter of 4^th May 2017. It is also clear that Rebeca is the one who took the original 2017 journal, and who has produced selected extracts which she considers suits her case; and that she has suppressed those entries – such as the entries for the 3^rd and 4^th May and 11^th August to 21^st September – which would not have supported her case. I am entirely satisfied that neither Rowena, nor Richard, would have edited the 2017 journal in the way in which the version put before the court has been edited. If either of them had done so, I am satisfied that different diary extracts would have been put before the court, and some of the others that are before the court would have been suppressed. In the case of Rowena, we would not have the entry for 26^th September because that contradicts her account of the date when she spoke to her father. In the case of Richard, there are some entries which do not reflect entirely favourably upon his relationship with his father. In the case of either Richard or Rowena, entries demonstrating any tenderness shown towards Rebeca by her father would have been suppressed. Above all, if Rebeca’s letter of 4^th May 2017 is genuine, we would have had the entries for 3^rd and 4^th May.

I have not to date read the terms of the manuscript contract entered into between Mr Face and Mr Kaethner on 15^th February 2016. It is on three handwritten pages and is signed by both Mr Face and Mr Kaethner on 15^th February 2016. It reads:

“Contract between Mr D Face and Mr R Kaethner, 15^th February 2006.

On Wednesday 15^th February 2006, agreement was reached between Mr R Kaethner and Mr D Face that Mr R Kaethner will vacate 18 Wray Crescent, London N4 3LP by the day of completion of the said premises.

Mr D Face will give to Mr R Kaethner £100,000 from the sale of 18 Wray Crescent subject to the conditions that Mr D Face will buy a property that is satisfactory to Mr R Kaethner with the £100,000 (Mr R Kaethner may contribute more), and subject to any matters that may arise from the conveyance of this property from the vendor to Mr D Face, Mr D Face will transfer the full legal title and all equitable interest in that property to Mr R Kaethner within six months of the conveyance of that property to Mr D Face.

Should Mr R Kaethner fail to leave the property as agreed, he will be responsible for any expenses (including for breach of contract) incurred by Mr D Face due to Mr R Kaethner not leaving as agreed by the day of completion.

Mr D Face accepts that by way of consideration for this contract Mr R Kaethner will pay Mr D Face the sum of five pounds, and also accepts by way of consideration the agreement Mr R Kaethner has made to vacate the property by the date of completion.”

Not only was the document signed, but it was also witnessed by a clerk. 15^th February 2006 was the day that the existing proceedings between Mr Face and Richard in the Edmonton County Court were disposed of by way of a consent order approved by District Judge Cohen.

I am entirely satisfied that by this document, Mr Face and Richard reached a binding compromise of the possession claim that Mr Face had brought against his son. Mr Face was to pay Richard £100,000, to be applied in the purchase of a property for Richard, in consideration of Richard vacating the property to enable the sale to proceed. What in fact happened was that the parties discovered that £100,000 would not purchase a property that was considered suitable for Richard. What was therefore done was that Mr Face spent £206,000 on the purchase of 120 Maryland Road for occupation by his son. Mr Lakin submits that the terms of this agreement required Mr Face to purchase a property for £100,000, or more if additional funds were provided by Richard. The only obligation (if any) created by the document was that there would be a gift of £100,000 to Richard that would be used to purchase a property for him. Mr Lakin submits that the 2006 document does not give Richard an interest in any property that the deceased might have purchased for any other amount. Furthermore, the property had to be identified and agreed between the parties, the inference being that if no such property was in fact identified, then no obligation to either gift the sum to Richard or to purchase a property for that amount arose. No purchase of a property was ever made for £100,000, or for any greater amount, with Richard contributing the extra. What in fact occurred was that Mr Face purchased 120 Maryland Road for £206,000, which purchase completed on 6^th September 2006. Mr Lakin submits that it is clear that whatever the 2006 document does, it does not create any equitable interest in that property. The 2006 document is not referable to 120 Maryland Road, and it could not be specifically enforceable as against the purchase of that property had it not completed. Richard does not contend that he asked for the property to be transferred to him absolutely pursuant to the 2006 agreement. There is said to be no enforceable agreement between Richard and Mr Face that Richard would have any interest in 120 Maryland Road. Even if there were such an oral agreement, then it would be unenforceable for want of compliance with either section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 or section 53(1)(b) of the Law of Property Act 1925. In any event, the limitation period applicable to a claim in contract (of 6 years from the date of breach) has long since expired. Alternatively, insofar as equitable relief is sought, then reliance would be placed upon the doctrine of laches. For those reasons, Mr Lakin submits that the 2006 document cannot give rise to any equitable interest in the property.

I disagree. It is clear that what happened was that there was a binding compromise of the dispute between Mr Face and his son over his son’s occupation of 18 Wray Crescent whereby Mr Face was to provide £100,000 for the purchase of a property for Richard. In the event, a property was purchased for £206,000 for Richard’s occupation. In my judgment, the effect of the agreement, in the events that happened, was to create a resulting or constructive trust affecting 120 Maryland Road under which Richard acquired an interest in that property equivalent to £100,000 over £206,000, namely 48.03%, with Mr Face acquiring the remaining 51.97%.

However, the difficulty that Mr Kaethner faces is that on 21^st April 2011 he was adjudged bankrupt, on his own debtor’s petition, in the Central London County Court. The combined effect of sections 283 (relating to the bankrupt’s estate) and 306 (relating to the vesting of the bankrupt’s estate in his trustee in bankruptcy) of the Insolvency Act 1986 is that on the making of the bankruptcy order, Mr Kaethner’s beneficial interest in the property vested in the Official Receiver as his trustee in bankruptcy. It would still appear to remain vested in that trustee. Mr Kaethner acknowledged that he had never disclosed the existence of his interest in 120 Maryland Road to his trustee. He says that this was because he had received legal advice, which he subsequently was told was inaccurate, that the 2006 document gave rise to no interest in that property. I am satisfied that it did. However, that beneficial interest is now vested in Mr Kaethner’s trustee in bankruptcy. By the time of his death, Mr Face had only the remaining 51.97% beneficial interest in the property of which he was able to dispose. Therefore, insofar as reliance is placed by Richard on the 2006 contract, it does not avail him because the beneficial interest to which it gave rise is now vested in his trustee in bankruptcy.

I turn then to the 2016 agreement. This is a typed document headed “Contract between Donald Charles Face and Richard Kaethner”. The date is 3^rd August 2016. It reads:

“Donald Charles Face agrees to create and put into a trust all of his legal interest and equitable interest in the freehold and leasehold of the property ‘120 Maryland Road, London N22 5AP’ (hereinafter ‘the property’) and the consideration to [be] paid by Richard Kaethner is agreed to be one British pound

(£1).

The form of the trust shall be as follows.

The trustee of the property shall be Ruby Sibayan.

The beneficiary of the trust shall be Richard Kaethner for his lifetime where the property will [be] held on trust for him to use as a home or for generating income as he chooses from time to time.

The trust document shall also include in it all that is required to ensure that it is also effective as a protective trust.

Upon the death of Richard Kaethner the property shall vest in Ruby Sibayan alone if there are no children from the relationship between Richard Kaethner and Ruby Sibayan, and if there are children it shall vest equally between Ruby Sibayan and all the children from the relationship between Richard Kaethner and Ruby Sibayan, and if Ruby Sibayan predeceases Richard Kaethner then the property shall vest in the children equally.

Donald Charles Face agrees to employ a professional in this area to fully constitute the trust for these purposes and intentions within six years of the date of this document.”

Both parties are then said to agree to this contract, and it was signed by each of Mr Face and Richard, who printed their names as well as signing them, and inserted the date of 3^rd August 2016.

I digress for a moment to add a short paragraph to the preceding part of this judgment relating to the 2006 contract. At trial, the point was taken that there was no evidence that the £5 consideration referred to in the 2006 contract had ever been paid.

I return then to this subsection of this judgment relating to the 2016 agreement.

In his skeleton argument, and as he developed the argument orally, Mr Lakin submits that the 2016 document appears to be an agreement between Richard and Mr Face that a trust would be set out at some point in the six years after the agreement whereby Richard would be granted a protected life interest in the property. The 2016 document does not itself attempt to be a fully constituted trust. At best, it is simply an agreement that a trust will be set up at some point in the future, and within six years of the agreement. On that point, the date of the creation of the trust has not yet passed and so, even on Richard’s own case, there can be no claim for damages as there has, as yet, been no breach. Mr Lakin submits that what the 2016 agreement clearly envisages is that there will be a further document, professionally drafted, as instructed by Mr Face, that will contain all that is required to ensure that it is also effective as a protected trust. It is therefore said to be clear that Mr Face has not constituted any trust by the 2016 agreement. He has to do so by 2^nd August 2022. Mr Lakin submits that it is clear that the 2016 document does not contain any present irrevocable declaration of trust at all. At best, it is an agreement to enter into a trust at some point in the future, on terms yet to be agreed. Mr Lakin points out that this is but one of many agreements that appear to have been reached between Richard and his father. He points to the fact that Richard and his father did attend Mr Pearl’s offices so that the title to the property could be transferred to Richard, but that he left without any transfer taking place. This is said to constitute a refusal of any offer. He submits that since what was being contemplated was a transfer of the property to Richard, the 2016 agreement was superseded by a further agreement that in turn was never acted upon.

Mr Lakin submits that the court should not find any intention to create legal relations on the basis of the 2016 agreement. It was simply part of an ongoing process by Mr Face when considering options for 120 Maryland Road. The 2016 document should be viewed as heads of terms, rather than as a binding agreement in and of itself. The trust was to be constituted at a later date, and its terms would have to be agreed at the time of its drafting. The terms were completely open as to what the terms of the protective trust were going to be. Mr Lakin says that there is simply, in reality, an agreement to agree, which is entirely unenforceable because its terms are so vague

In the course of his oral submissions, Richard referred me to a passage at paragraph 10-051 of Megarry and Wade: The Law of Real Property (9^th edn) citing the decision of the Court of Appeal in Neville v Wilson [1997] Ch 144 at 155-158. The learned editors there state that:

“It has been held that a specifically enforceable contract to transfer an equitable interest in circumstances where the transferee has furnished the consideration creates a constructive trust in favour of the transferee. This vests the equitable interest in the transferee without the need for writing.”

This is under the exception relating to resulting, implied or constructive trusts contained in section 53(2) of the Law of Property Act 1925.

I am satisfied that the position here is as follows: There was a binding agreement between Mr Face and Richard to create protective trusts of the property in favour of Richard for his lifetime, and thereafter, in the events that have happened, equally between Richard’s son and his wife Ruby Sibayan. That trust was to be fully constituted within six years of the date of the document by Mr Face employing a professional in the area to fully constitute the trust. At paragraph 22-043 of Snell’s Equity (34^th edn) it is recognised that there are two main ways that a settlor may constitute an express trust. He may either convey the property to a trustee to hold for the beneficiaries, or he may declare himself to be a trustee of it. If the conveyance upon trust to the intended trustee has been completed, then the beneficiary can enforce the trust. The outcome is the same if the settlor simply declares himself a trustee of the property in the beneficiary’s favour. Once the declaration has been made over property already vested in the settlor, the beneficiaries can immediately enforce the trust. Here, however, it is clear that there is no present declaration of trust in favour of Richard.

Paragraph 22-037 of Snell’s Equity makes it clear that to create a trust the declaration must amount to a present irrevocable declaration of trust, and the writing must contain all its terms. That is clear from the decision of Neville J in the case of Re Cozens [1913] 2 Ch 478; see, in particular, the passage at page 486 of the judgment. Paragraph 22-042 of Snell makes it clear that once a trust is completely constituted, the beneficiaries can enforce it whether they have given value or are mere volunteers. If the trust is incompletely constituted, however, the outcome depends on whether the beneficiaries have given value. Beneficiaries who have given value can enforce the

I am satisfied that in the present case there is no completely constituted trust of Mr Face’s beneficial interest in 120 Maryland Road. There is merely an agreement to create a trust in the future. Since Richard is in the position of a volunteer, he is unable to enforce that trust. The authority relied on by Mr Kaethner of Neville v Wilson is of no assistance to him because that presupposes the existence of a specifically enforceable contract; and here the agreement is not specifically enforceable because Richard is in the position of a volunteer. I think that Richard recognised that and he therefore sought to say that he was entitled to damages for breach of contract. In support of that, he relies upon a statement at paragraph 27-052 of Chitty on Contracts (33^rd edn) where it is said that on the principle that equity will not assist a volunteer, specific performance will not be ordered of a gratuitous promise even though it is binding at law because it is made by deed or supported by a nominal consideration so that an action at law for the agreed sum or for damages can successfully be brought upon it. The authority cited for that is the decision of Romer J in the case of Cannon v Hartley [1949] Ch 213. In his judgment in that case, at page 217, Romer J recognised that whilst a volunteer could not come to a court of equity and ask for relief such as specific performance, which was peculiar to the equity jurisdiction, it was reasonably clear that, provided an agreement was supported by consideration, then damages would be recoverable at law.

The difficulty, as Mr Lakin has pointed out, is that the time for performance of the agreement has not yet expired and it therefore cannot be said that any claim in damages for breach of contract has yet crystallised. The time for performance has not yet expired; and I am satisfied that so far neither Mr Face, nor his estate, have conducted themselves in such a way as to amount to a repudiatory breach of the agreement. Likewise, I do not consider that Richard’s conduct, even at the meeting with Mr Pearl on 5^th October 2016, can be said to have amounted to a repudiatory

So, for those reasons, I find that there was no completely constituted trust in favour of Richard of Mr Face’s 51.97% beneficial interest in 120 Maryland Road. There is no specifically enforceable agreement to create such a trust. It may be that in the future, if the estate were to fail to create such a trust, that might give rise to a claim for damages. The quantification of those damages would be a matter of some difficulty because it would involve assessing, in money terms, the value of a protected life interest in 120 Maryland Road. But that is a potential future question. There is no present breach, and therefore no present claim for damages. Therefore, the counterclaim falls to be dismissed.

For the reasons I have given, I dismiss the claim by Rebeca as totally without merit. My order dismissing the claim should include my recording that the claim is totally without merit. It is based on a fabricated document. I will pronounce against the alleged 2017 will. I will declare that Mr Face died intestate. On the counterclaim I will declare that the 2006 contract operated to vest a 48.03% beneficial interest in 120 Maryland Road in Richard, but that this beneficial interest vested in the Official

I will direct that a transcript of this judgment be obtained at public expense and that it should be sent to the Official Receiver in Croydon and to the Crown Prosecution Service. Having dismissed the claim, and said that it was totally without merit, the costs must fall to be paid by the claimant to the defendants. Having regard to the claimant’s conduct, I am entirely satisfied that they should fall to be assessed on the indemnity, rather than the usual standard, basis. No doubt the costs can be retained out of Rebeca Face’s one-third interest in the intestate estate of her late father. As for the costs of the counterclaim, my provisional view is that the just way of dealing with them is that there should be no order as to those costs. Neither side has been entirely successful or unsuccessful. Richard has succeeded in asserting a claim under the 2006 contract, but it has done him no good because that interest is vested in the Official Receiver as his trustee in bankruptcy. He has succeeded in establishing, contrary to the contentions of the defendants, that the 2016 contract was a valid agreement; but it is not specifically enforceable. It may give rise to a claim for damages in the future; but there is no present entitlement to damages. As a result, neither side has been entirely successful in their respective arguments; and it therefore seems to me that the just way of dealing with those costs may simply be to say: “No order as to the costs of the counterclaim”; but I will hear submissions on that.