30 July 2021 - Article
Kunicki v Heyward attracted significant press attention as it travelled through the Courts late last year. Iain Heyward was unsuccessful in challenging his late father's will, which left the lion's share of the estate to Iain's sister, Fiona. Iain had (amongst other complaints) installed spyware on his father's computer and been involved in the disappearance of his iPad, which the court considered drove Mr Heyward senior to largely disinherit him.
Jack Heyward, a well-known harpist who also ran a harp music and insurance business, died in 2013, five months after executing a will which left half of his £1.3million estate to Fiona, and the other half equally between his 5 granddaughters.
In a separate letter of wishes, Mr Heyward directed that Iain should receive his prized 19th century harp, and a collection of harp memorabilia including autographed pictures of famous 20th century harpists. Iain estimated this gift to be worth c. £3,000.
Mr Heyward had made several wills prior to 2013, including in 2005 and 2008. The 2005 will left his interest in his harp business to Iain and provided for Iain and Fiona to receive 50% each of the residuary estate. The 2008 will left Mr Heyward's interest in his harp business to Iain, 50% of the residuary estate to his granddaughters and split the remainder as to 25% for Iain and 25% for Fiona.
Prior to the 2013 will, Mr Heyward gifted a large part of his harp business to Iain.
Nevertheless, the 2013 will was still plainly a departure from Mr Heyward's previous pattern of will making, which had treated Iain and Fiona equally in respect of the residuary estate. Iain challenged it on the basis that (i) Mr Heyward had not had the testamentary capacity to make a will in 2013; (ii) Mr Heyward had not known of or approved the terms of the 2013 will; or (iii) Fiona had poisoned Mr Heyward's mind against Iain.
To succeed in a claim that a testator lacked the mental capacity to make a will, a disappointed beneficiary must show that the testator was unable, by reason of a mental impairment, to understand that he was making a will, and/ or the extent of the property of which the will disposed and/or the claims upon his estate (from, for example, dependents and family members).
Iain's case was that Mr Heyward (who had suffered a heart attack in early 2012 and who had been diagnosed with cancer in November 2012) lacked, by reason of his illness or the drugs he was taking to control it or the anaemia and fatigue it caused, the ability to understand these issues.
Iain was able to point to evidence that suggested Mr Heyward did not recall when he gave instructions for the 2013 will that he had already given most of his Harp business to Iain. However, the solicitor who drafted the 2013 will gave convincing evidence that she had considered the question of capacity when drafting the will; and was able to produce a contemporaneous opinion of Mr Heyward's GP to the effect that Mr Heyward retained full mental capacity at the time he executed the will, in spite of his physical ailments. The court also heard expert evidence to the effect that anaemia would not have impaired Mr Heyward's capacity.
Knowledge and approval
The challenge here was Mr Heyward's will did not reflect his intentions.
The court applies a two stage test in considering whether a will reflects a testator's intentions. First it will ask whether the facts give rise to suspicion that the will does not reflect the testator's intention. This will usually be because of the involvement of a beneficiary – in this case, Fiona. Secondly it will consider whether any such suspicions are allayed by the evidence before it.
Iain based his case that Mr Heyward had not known of or approved the contents of the 2013 Will on the same concerns as to Mr Heyward's state of health and, Fiona's involvement in instructing the solicitor who drafted the will.
Again, the solicitor who drafted the 2013 will gave convincing evidence which contradicted any suggestion that Fiona, rather than Mr Heyward, had prepared the instructions for the 2013 will.
The more interesting part of the case, and the part to which the judgment devotes most attention, is Iain's claim (legally termed 'Fraudulent Calumny') that Mr Heyward's decision to make the 2013 will was driven by statements made by Fiona with a view to turning her father against Iain.
The test for Fraudulent Calumny is a stringent one. It requires the court to be satisfied that (i) a statement was made which directly affected the terms in which a testator chose to execute their will; (ii) the statement is false; and (iii) the person who made the statement knew it was false or was reckless as to (ie did not care) whether it was true.
Iain's claim turned on a series of emails between Fiona and Mr Heyward in which they discussed Iain's performance as executor of the late Mrs Heyward's estate. At various points during that exchange, Fiona said (in one case inaccurately) that she had not received her portion of share dividends received by Iain as executor of the late Mrs Heyward's estate. She also expressed the view that Iain was a 'chancer' who given the opportunity would be inclined to 'take more' than his entitlement.
The judge accepted that Fiona's emails did amount to a representation by Fiona that Iain had not efficiently or correctly administered their mother's estate. However, Iain's case for Fraudulent Calumny failed because the judge was not convinced that Fiona's representation was untrue (let alone that she had been deliberately dishonest in making it). Nor did he believe that Iain's behaviour as executor of his mother's estate was a factor in Mr Heyward's decision to make the 2013 will.
Contract to share
One final point, which the judge was asked to consider in the alternative to the claims set out above, was whether Fiona had entered into a binding agreement with Iain to share with him anything she received from their father's estate.
The background to this issue is that in 2007 Fiona and her father had fallen out and Mr Heyward had threatened to disinherit her. He was, by some accounts, a difficult and unpredictable man.
Iain's evidence was that he and Fiona had agreed at that time to share whatever either one of them received by way of inheritance from Mr Heyward. Fiona, by contrast, said that they had merely agreed to 'look after each other'.
In line with the rest of the case, the judge appears to have preferred Fiona's evidence to Iain's. He concluded that there was no binding agreement which required Fiona to share her inheritance with Iain. Another example, perhaps, of the importance of conduct and credibility before the court.
The wider background appears to have been key in informing the judge's opinion. He heard evidence which suggested that Iain had obtained the email exchange between Fiona and Mr Heyward from Mr Heyward's email account dishonestly and without consent by installing spy software on Mr Heyward's computer.
The judge also heard evidence that Iain and Mr Heyward had fallen out over Iain's part in the disappearance of Mr Heyward's iPad. This, he said, was a critical episode in persuading Mr Heyward's to make the 2013 will, which ultimately cost Iain the c. £250,000 he would have received under the 2008 will.
The judge drew further support for his view that there was nothing suspicious about the terms of the 2013 will from evidence showing that Mr Heyward considered Iain to be a spendthrift and did not approve of the way he chose to spend his money; he particularly disapproved of Iain's penchant for radio controlled helicopters.