Kunicki & Anor v Hayward

A will is valid for testamentary-capacity purposes where the testator can understand the nature and effect of making a will, the extent of the estate, and the claims requiring consideration, unless mental disorder or insane delusion affects the dispositions. Proper execution and professional preparation are significant evidence, but do not make validity conclusive.

Knowledge and approval concern whether the testator understood and accepted the document as expressing the intended testamentary wishes. Appreciation of the precise legal effect of drafting words is not invariably required, including where a drafting error produces an unintended legal consequence.

Fraudulent calumny requires a false representation about a potential beneficiary’s character, made to influence the testator, knowingly false or recklessly made, and causative of the will.

Jack Hayward’s daughter Fiona and her husband Jan sought probate in solemn form of his 2013 Will. His son Iain challenged it on testamentary-capacity, knowledge-and-approval, and fraudulent-calumny grounds. Iain also claimed that he and Fiona had agreed to share their inheritances equally, or alternatively to look after one another.

The 2013 Will divided the residue equally between Fiona and Mr Hayward’s granddaughters, whereas the 2008 Will had made provision for Iain. The central issues were whether Mr Hayward understood the extent of his estate, knew and approved the contents of the 2013 Will, whether Fiona’s statements had procured it by fraudulent calumny, and whether the alleged family agreement was enforceable.

1. Probate and counterclaim. Probate of the 2013 Will was decreed in solemn form. The Amended Counterclaim was dismissed.
2. Testamentary capacity. The applicable principles were those stated in Banks v Goodfellow (1870) LR 5 QB 549. The testator had to be capable of understanding the extent of his estate, but need not know its precise value. The court accepted that Mr Hayward appeared not to know the extent of part of his retained business, but found that he was nevertheless capable, because of the evidence as a whole, of understanding the extent of his estate. The rational and properly executed will, its preparation by a solicitor alert to capacity issues, the lay evidence and the expert evidence all supported that conclusion.
3. Knowledge and approval. Following the approach in Gill v Woodall [2011] Ch 380, the court considered the totality of the evidence rather than applying a rigid two-stage process. Reading and execution were important but not conclusive. A testator need not invariably understand the precise legal effect of the words used. The evidence showed that Mr Hayward gave instructions, read the solicitor’s explanation and draft letter of wishes, corrected the draft, and executed the will after it was read to him. He therefore knew and approved its contents.
4. Fraudulent calumny. The requirements stated in Re Edwards dec’d [2007] WTLR 1387 were applied. Fiona’s statements conveyed criticism of the efficiency of Iain’s administration, not a concluded assertion that he was dishonest or untrustworthy. Alternatively, any representation of dishonesty was not shown to have been made knowingly falsely or recklessly. In any event, the administration of Mrs Hayward’s estate was not a factor in Mr Hayward’s decision to make the 2013 Will.
5. Alleged agreement. The parties had agreed only that, if Mr Hayward cut either of them out of his will, the other would look after that person. The agreement was too uncertain, or was not intended to create legal relations, and was not enforceable.