Neutral Citation Number: [2008] EWHC 2696 (Ch)
Case No: HC07C01082
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:6 November 2008 

Before :

Mr Justice Norris
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Between :

	(1)	Simon Richard Sprackling
(2)	Shon Arnold Sprackling
(3)	Joanna Sally Barlow	Claimants	
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	(1)	Felicity Ann Sprackling
(2)	Peter Dennis Sprackling	Defendants	

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Mr Eason Rajah (instructed by Pitmans) for the Claimants
Mrs Nicola Preston (instructed by Employment Law Services) for the First Defendant
The Second Defendant did not appear.

Hearing dates: 27-30th October 2008
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Judgment
Mr Justice Norris : 
1.	Richard Sprackling (“the Deceased”) died on the 17 February 2006 of a brain tumour.  He had been a farmer and agricultural contractor in the Petersfield area.  The professional advisors who worked with him described him as cautious, careful, extremely thorough and a man who thought about things a lot.  His daughter described him as a non-confrontational man who would do what is right.  
2.	He was survived by his second wife Felicity Ann Gonsalves Sprackling (“Felicity”) whom he had married in March 2002.  She had trained as a plant scientist but had become a solicitor in the early 1990s.  The Deceased quite plainly adored her: and at trial his family was generous in their acknowledgement of the happiness of the Deceased and Felicity’s marriage.  
3.	The Deceased was also survived by the children of his first marriage to Ann Sprackling who had died in 2000.  His eldest son was Simon.  He had moved away from the farming business in 1977 but had returned in 1986.  He and his family lived in the farmhouse of one of the tenanted holdings at Thorney Island, Emsworth.  The Deceased and Ann had a second son, Shon who had been in the farming business since his education finished.  He and his family lived in the farmhouse on another tenanted holding at Dangstein Farm, Rogate, Petersfield.  Simon and Shon had a sister Joanna.  She has children by an earlier marriage but at the time of the events in question, was married to Charlie Barlow, a businessman, and lived in France.  As is so frequently the case, there were mild tensions between the Deceased’s second wife, and the children of his first marriage:  but it is important not to over emphasise the significance of this feature.
4.	At the time of his death the Deceased’s assets may be conveniently described as falling into six categories:-
(1)	His shareholding in RN Sprackling Ltd (“the Company”);
(2)	Freehold land at Sandilands Farm, Rogate;
(3)	Freehold land at Nyewood Farm, Rogate;
(4)	A holding of tenanted land at Thorney Island (held on a joint tenancy by the Deceased and his brother Arnold David);
(5)	Other tenanted land at Chilgrove, Ditcham, Dangstein and Wakeham (tenancies held by the Deceased, either alone or jointly with one of his sons);
(6)	Modest personal chattels and the proceeds of an en-cashed NFU Bond.
It is necessary to expand a little on three of these assets.  
5.	First, the Deceased’s shareholding in the Company.  The Deceased had for many years farmed in a equal partnership with his first wife Ann.  On her death she left her farming interests to the Deceased outright.  The Deceased arranged for a Deed of Variation to be entered under which his wife’s 50% share in the farming partnership was given equally to Simon and Shon.  Following that redistribution of the partnership interests the Company was incorporated on the 1 February 2002 and commenced trading on 1 April 2002.  These formal business arrangements were thus put in place contemporaneously with the Deceased’s marriage to Felicity.  The Company had 30,000 issued shares, of which the Deceased, Simon and Shon each held 10,000.  Each of them was a director.  Their interests in the partnership were treated as loans to the Company, and the appropriate directors’ current accounts were created.  In consequence the Deceased’s director’s current account was larger than that of either of his two sons.  These current accounts are important in two respects.  (a)  It was from the outset the intention of the Deceased and his sons that the Deceased should withdraw his capital by drawing down on his director’s current account.  This he did at the rate of £1000 per fortnight until 2005.  (b)  Simon and Shon each took the minimum by way of wages and director’s remuneration, so that to pay the living expenses of themselves and their families they too had to draw down on their director’s current accounts.  The object of this was to save National Insurance, the intention being that the Company would declare dividends which would remain un-drawn and thus would be added to the current accounts to fund further drawings.  
6.	The Company’s farming enterprise consisted of a number of different profit centres.  In the period immediately preceding the Deceased’s death they included:-
(a)	A 500 head herd of organically reared Aberdeen Angus cattle:  these were run in rotation on Sandilands Farm and other organic land.  They were never brought in and therefore required no buildings.  
(b)	A very substantial agricultural contracting and grass cutting business (which had been the prime responsibility of Simon).  It was highly cash generative, but significantly dependant on securing long term contracts.
(c)	 A composting business operated on some of the farms, which was low cost, highly profitable and also cash generative.
(d)	Various share farming arrangements on the arable land relating to vegetable and other crops.  
	Over the years a number of other businesses had been tried by the Deceased on the land, some of which continued in a small way, and some of which had been abandoned.  These included horse livery, the construction of a cross country eventing course, chicken production and egg production.  This was typical of the Deceased’s thoughtful approach to his affairs, but equally demonstrated his ability to look coldly at (and to abandon) unsuccessful ventures. 
7.	As part of the evolution of the farming enterprise during the course of 2000 the Company had established in a building on Sandilands Farm a meat processing plant.  The economic case for this was sound.  Whereas a beef carcass could be sold Waitrose for £500, the same carcass if processed and sold directly by the Company could yield £1,500.  This involved the Company in venturing to a significant degree into the retail market, which it did by establishing “Rother Valley Organics” as a brand.  This occasioned very heavy start up costs:  not only was there the capital expenditure on the building, but there was an addition to current costs in the employment of butchers and in the engagement of a marketing and public relations consultant.  It also took the Company into areas of administration of which it had no real experience (such as stock control).  Since one of the outlets for processed meat were burger vans operated by or on behalf of the Company this raised issues of micro management, of which neither Simon nor Shon had any experience.  
8.	The Deceased, Simon and Shon decided not to borrow in order to establish the meat processing plant, but to rely upon internally generated cash (ie from the contracting and composting businesses) supplemented by a rural enterprise grant that would be repayable in the event that the processing plant closed.  This imposed heavy strains on cash flow (further depleted by the current costs of operating the plant) and led by mid 2005 to a severe “cash pinch”.  This was exacerbated by the notorious departmental delays in the making of the single farm payment.  It therefore represented a general challenge to the business of the Company.  The Deceased responded by ceasing withdrawal  of his capital.  Simon and Shon (particularly the latter who had significant school fees to find) did not respond in the same way. 
9.	It is also necessary to deal at some further length with Sandilands Farm.  This had been inherited by Simon, Shon and Joanna’s mother. It consisted of approximately 105 acres held in a single block traversed by the River Rother.  Approximately 70 acres consisted of organic arable on which, in rotation, the Aberdeen Angus herd grazed.  The River Rother ran across the middle of this organic land before flowing into the adjoining holding and then bending round to form the northern boundary of Sandilands Farm, where the farm enjoyed fishing rights.  In one of the fields adjoining the river where it traversed the organic land Simon had dug a lake of some two acres or more and in the adjoining field had constructed a car park.  Access to the car park was over an un-metalled farm track which ran eastwards along the northern boundary of the parcel to the main road.  At this point there was a little peninsula of land of some two and half acres.  On this a bungalow had been constructed called (at the time of the Deceased’s death) “Sandilands Farmhouse”.  The bungalow was set in a small garden carved out of the surrounding fields, which were two paddocks (the southern one crossed by the access way which served the lake).  There was only a small common boundary between the paddocks in which Sandilands Farmhouse was set and the rest of the holding.  Between the organic arable and the peninsula of land were two further fields (called “Orchard Field” and “Stable Field”) which were non-organic, and which were let together with some buildings in the southern field, as an equestrian centre.  In the buildings immediately adjoining the equestrian centre itself were to be found the farm office (which was the central administration point for the whole of the Company’s enterprises) and a building in which the meat processing plant had been constructed.  The lease of the equestrian centre was due to expire in July 2006.  It had originally produced a monthly rent of £2,420:  but the construction and operation of the meat cutting plant had upset the tenant and by agreement the rent had been reduced to £1,790 per month.  This rental income was, in effect, the Deceased’s pension.  It may therefore be noted that the initial operation of the meat processing plant had caused the Deceased’s monthly income to decline from £4,240 to £1,790 (by rendering continued capital withdrawals from the Company impossible and by reducing the rent payable by a third party).  Meanwhile the Company continued to use land at Sandilands (and in particular the buildings housing the office and the meat processing plant) without paying any rent to the Deceased.  
10.	Lastly, it is necessary briefly to refer to the holding at Thorney Island.  This was held by the Deceased upon a joint tenancy with his brother (Arnold) David.  The farmhouse was Simon’s family home.  On a personal level the Deceased and his brother did not speak to one another:  but as businessmen they had for years remained joint tenants, having in effect partitioned the holding and shared out the tenancy obligations.  
11.	On the death of the Deceased all of these assets fell to be administered under the terms of a will dated 15 September 2005 (“the Will”).  By the Will the Deceased (describing himself as “of Sandilands Farm, Rogate”) appointed Felicity, Simon and his own brother Dr Peter Sprackling to be his Executors.  By Clause 3.1 he gave a legacy of £1000 to his friend Ruth Crockford “who has helped me so cheerfully through the last six years or so and who has been a good friend”.  By Clause 3.3 he gave the following specific legacy:- 
“Provided my lovely wife Felicity survives me by 28 days to Felicity my property known as Sandilands Farm, Rogate aforesaid to include the fishing lake with access to the car park”.
By Clause 4 he made the following further gift:-
“In the event that my brother Arnold Sprackling has predeceased me I give absolutely but subject to any tax my property known as Nyewood Farm…to Simon”.
 Clause 5 then contained a gift of personal chattels.  Clause 6  established a residuary trust fund.  Clause 7 provided that the trustees should hold that residuary trust fund “upon trust for such of my children as shall survive me and more than one (sic) in equal shares” with a proviso for the substitution of issue subject to attaining the age of 21 years.  Clauses 8 following contained formal administration powers (including a power to carry on the Deceased’s business).  
12.	Simon, Shon and Joanna say that mistakes were made in the preparation of the Will and that it does not represent the true instructions of the Deceased:  and in one respect Felicity agrees that is so.  The Claimants concede that upon its true construction Clause 3.3 of the Will gives (by the words “my property known as Sandilands farm…to include the fishing lake with access to the car park”) the entirety of Sandilands Farm to Felicity ie. the farmhouse set in its garden with the two adjoining paddocks, the fishing lake, the 70 acres of organic land, the land let as the equestrian centre, and the buildings containing the farm office and the meat processing plant.  But they say that what the Deceased intended to leave Felicity was (a) the farmhouse within its curtilage of garden and paddocks and (b) the fishing lake and its car park together with access rights over the relevant farmland.  The Claimants and Felicity agree that the Deceased did not intend to leave Nyewood Farm to Simon “in the event that my brother Arnold has predeceased me”, but rather in the event that the Deceased predeceased his brother Arnold.  It is therefore necessary to see whether a probate court should admit the Will to probate in its existing form or should rectify it. 
13.	The power of a probate court to omit from a testamentary document words of which the testator did not know and approve is well established:  see Re Morris Deceased [1971] P 62.  But mere omission (with any blank being supplied by a court of construction) will not suffice in the present case.  Both parties were agreed that this case would have to be brought within Section 20(1) Administration of Justice Act 1982.  This provides:-
“If a court is satisfied that a Will is so expressed that it fails to carry out the testator’s intentions, in consequence 
(a) of a clerical error; or 
(b) of a failure to understand his instructions; 
it may order that the will shall be rectified so as to carry out his intentions”.
14.	In an oft cited passage from Re Segelman Deceased [1996] Ch 171 at 180, Chadwick J explained that:-
“The sub-section requires the court to examine three questions.  First, what were the testator’s intentions with regard to the dispositions in respect of which rectification is sought.  Secondly, whether the will is so expressed that it fails to carry out those intentions.  Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions”.
15.	In an equally well known passage at p184 Chadwick J expressed the view that although the standard of proof required in a claim for rectification under Section 20(1) is that the court shall be satisfied on the balance of probability, the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary.  This emphasises that speculation is no basis upon which to interfere with a formal expression of testamentary intentions.  One must be confident that the will as expressed does not record the instructions given because of error or misunderstanding, “confident” in the sense of being satisfied on the balance of probabilities by evidence of a quality commensurate with the inherent probabilities of the case itself. 
16.	I will begin with a brief reference to the testator’s existing will and its predecessor.  The purpose of so doing is not to establish some presumption about what the Deceased must have intended to achieve in his final Will.  The reference to earlier provisions is appropriate only insofar as it illuminates the instructions given for the final Will, because it is upon the actual instructions not upon some presumed intention that one must focus.
17.	In a will dated 23 April 1999 the Deceased had included a gift of Nyewood Farm in the following terms:-
“Should I predecease my brother Arnold David Sprackling…I give and bequeath free of inheritance tax unto my son Simon Richard Sprackling my freehold property known as Nyewood Farm…”.
18.	After the date of that will the Deceased’s wife Judith Ann died, and he married Felicity.  In October 2003 the Deceased went to see Julie Jones the probate partner of the Owen-Kenny Partnership.  She gave evidence at the trial and impressed me as a thoroughly competent solicitor.  She took a hand written note at the time of the interview with her client and prepared a typed up attendance note immediately thereafter.  At the interview on 30 October she took her client through the assets that would be affected by the intended Will.  She recorded that the Deceased told her that the land and buildings had been kept out of the Company assets, and that the Company did all the farming using the two farms that belonged to the Deceased, but not paying any rent.  She recorded that the farm at Thorney Island was tenanted by the Deceased and his brother Arnold, and that it was a joint tenancy so that in the invent that Arnold died first the tenancy would pass to Mr Sprackling “and then there will be a transition onto his two sons”, but that if the Deceased predeceased his brother then the tenancy would pass to his brother Arnold.  The Deceased explained that he wanted his wife (Felicity) to be able to stay in the house at Sandilands Farm, and that he had paid off the mortgage on her house so that she was able to rent it out for income.   He gave instructions to leave his residue as to 2/5ths to each of Simon and Shon and 1/5th  to Joanna.  On being asked whether his sons got on he informed Julie Jones that they did and that they would know how to divide up the farm between them. Julie Jones was alert to potential inheritance tax problems and wisely told the Deceased that further advice should be sought.  She prepared what she described as “a holding will” on which she took the Deceased’s instructions on 5 December 2003.  When giving instructions on that occasion the Deceased explained to Julie Jones that he wanted to ensure that Felicity had a house for her life time, with wide powers to allow her to move:  and that he didn’t want her exposed to a problem with her fellow trustees whereby they made it difficult for her to stay at Sandilands Farm or were just uncooperative.  He explained that the farmhouse was a three bedroom house worth about £500,000 and the attendance note records:-
“It stands in one corner of the farm and could be quite separate from the land and farm buildings”.
In the course of the wide ranging discussion there was consideration of the meat processing plant.  The attendance note records:-
“Mr Sprackling is concerned about the meat processing and wants to separate meat processing from RN Sprackling Limited…What Mr Sprackling wants to avoid is that the meat processing getting into difficulties and pulling down RN Sprackling with it”.
19.	These instructions led to the approval of the holding will which was signed on 15 December 2003.  Clause 6.1 contained the following gift:-
“I give to my trustees the farmhouse at Sandilands Farm, Rogate aforesaid (the Property) on the following trusts…My trustees shall hold the Property for my wife for her life and after her death my trustees shall hold the Property as an immediate addition to the residue of my estate…”.
There then followed standard terms as to the upkeep of the property, the ability of Felicity to occupy it, and the imposition of a duty upon the trustees to comply with any reasonable request by her to exercise their powers towards the provision of another residence for her.  Clause 8 of the Will then established a discretionary trust for the benefit of the Deceased’s wife, children and remoter issue.  In connection with that discretionary trust the Deceased left a signed memorandum of wishes.  This explained to his trustees that his 2003 Will had been made until such time as he could make a more detailed Will in order to take the benefit of agricultural and business property relief and asked them in connection with any intended distributions to take into account the following wishes:-
“If Simon loses the tenancy at Thorney Island because of my death then please transfer to him Nyewood Farm…ultimately please distribute the discretionary trust between Simon, Shon and Joanna with each of my sons receiving two shares to my daughter’s one share”.
20.	This is the Will that was in force until the Deceased made the Will on 15 September 2005.  I can now examine what brought about the new Will.
21.	On 2 August 2005 the Deceased woke up with a headache and temperature and suffered several episodes of very forceful vomiting.  He visited his GP on that and subsequent days in the course of which the Deceased explained that (according to the doctor’s notes
“stressful [?] finishing business and not going well. Feels no energy. Waking 3-5 times a night, waking up worrying….”
The Deceased said he felt tearful, suffered from poor motivation and enthusiasm, and said that he felt he was having a breakdown.  The GP diagnosed a moderate depressive episode and prescribed accordingly.  Towards the end of August the Deceased telephoned his solicitors to request an appointment with Julie Jones so that he could update his Will:  and an appointment was arranged for 27 September 2005.  He visited his GP on 5 September 2005 who noted that from a depression point of view there was a good improvement and that the situational difficulties were being addressed.  However the Deceased had become unsteady and spatially unaware, so the Doctor arranged for a CT scan.  This was undertaken at Portsmouth hospital on 6 September, on which occasion the Deceased was diagnosed as suffering from an inoperable brain tumour.  He was transferred to Southampton Hospital for further tests and for the investigation of “bulk reduction” surgery.  
22.	The Deceased began to put his affairs in order.  On 10 September 2005 he granted Felicity a sole Power of Attorney (which was not prepared by his solicitors).  At trial Felicity sought to make much of the fact that the power was a sole power in her favour (and not a joint power with any of the children).  The children themselves regarded it as entirely natural that the Deceased should have granted his wife the sole power in relation to his affairs because he had withdrawn from operational duties within the Company, and the Company was perfectly well able to function with themselves as two of its three Directors.  I decline to draw the inference (as Felicity invited me to do) that the grant of the Power of Attorney demonstrates that the Deceased did not trust his children.  
23.	What is of interest about the Power as completed is that it begins:-
“I Richard Noel Sprackling of Sandilands Farmhouse, Rogate…appoint my wife Felicity Ann Sprackling of Sandilands Farm, Rogate…”.
Since the Deceased and Felicity shared the same house this is a neat demonstration (evident elsewhere in letter headings and fax header sheets) that the terms “Farm” and “Farmhouse” appear to have been used interchangeably in relation to the bungalow, and when used in formal documents did not appear to excite any interest.  
24.	In relation to the grant of the Power of Attorney Felicity was acting both as a wife and a solicitor.  In that letter capacity she prepared a file note of her dealings with her husband.  It included the following:-
“FS stated that any action she took under the POA would be notified to all parties present and an e-mail sent to [Peter Sprackling] by way of a written record as a protection for her against the children…RNS asked that PS and SM give FS all the assistance they could in dealing with his sons because when it came to matters of money his sons could be very difficult…”.
The attendance note (which is counter-signed by the Deceased) also records the appointment to make a new Will on 27 September and requests Peter Sprackling to arrange for the solicitors to attend at the hospital.  
25.	The Deceased was at this time negotiating with the Petersfield and District Angling Club the grant of a ten year licence over the lake on Sandilands Farm.  On 11 September 2005 Felicity typed up for signature by the Deceased instructions to her to type up and execute that licence.  
26.	On 12 September Peter Sprackling telephoned the Deceased’s solicitors.  According to a statement signed on 1 December 2006 by Helen Gagan (then of the Probate Department of Owen Kenny):-
“Doctor Sprackling said his brother had told him that he wanted to make a simple change to his Will and he felt it could not wait as Mr Sprackling was having an operation, possibly on the Friday of that week, and he wanted to sign a new Will before then”.
Julie Jones was on holiday.  Helen Gagan arranged to go in her place. But then Ms Gagan arranged for the Managing Partner Victoria Kenny to go instead. I will deal separately with the oral evidence of Victoria Kenny, and will continue with the narrative as it is disclosed by the documents.
27.	The Deceased was ready for the appointment.  He had prepared in his own hand a document headed “Draft Will 14 September 2005” (and I will refer to this as “the draft will”).  The document noted that Julie Jones had the Deceased’s present Will.  It then set out his instructions in this form:-
“TO RUTH CROCKFORD who has helped me so cheerfully through the last six years or so and has been a good Friend I leave £1000.
To my lovely WIFE FELICITY SANDILANDS FARM House and PADDOCKS and Garden.  Also the Fishing Lake with access across the Farm TO THE CAR PARK and then to the LAKE ie A CAR or on FOOT.  THE LAKE IS LEASED TO PDAC on a ten year LEASE.  THEY ALSO LEASE TWO LAKES ON NYEWOOD FARM.  All INCOME FROM PDAC OR ANY OTHER FISHING INCOME TO BE PAID TO FELICITY SPRACKLING FOR MAINTENANCE and general RUNNING COSTS OF SANDILANDS FARMHOUSE.
SHOULD MY BROTHER A. D. SPRACKLING PREDECEASE ME THEN I LEAVE NYEWOOD FARM AND BUILDING TO SIMON RICHARD SPRACKLING.
THE REST OF MY ESTATE I wish TO BE SOLD and THE PROCEEDS to be divided equally BETWEEN MY DAUGHTER JOANNA MY SON SIMON AND MY SON SHON.  THERE IS NO DEED OF VARIATION.  IF THERE IS A NEED TO TRANSFER TO MY GRANDCHILDREN I WOULD NOT WANT IT TO HAPPEN UNTIL THEY HAD BECOME MATURE ENOUGH TO MONITORED BY MY EXECUTORS”.
28.	Victoria Kenny prepared an attendance note. She made some preliminary observations, of which I need record only one, namely, “he had spent a lot of time thinking about it and had made some notes for me which are in the file.”  Those are the instructions to which I have referred as “the draft will”.  After recording that the Deceased had made a holding will but done nothing further because he did not want to think about his own mortality, the attendance note continues:-
“He is, however, forced to do so now and he wants a much simpler will.  He appreciated that what he had done was not tax efficient but he said that, basically, he was not really concerned about that aspect of it.  He felt that there may be some acrimony amongst his family and what he wanted was to ensure that everything was as straight forward and simple as possible”.
The form of the attendance note suggests (and I so find) that what then happened was that Victoria Kenny went through the document headed “Draft Will”  endorsing on it any further instructions or commentary (such as where she might obtain a particular address, or what the funeral arrangements were to be).  The key part of the attendance note reads as follows:-
“He could not remember his friend Ruth Crockford’s address.  He thought his wife may have it and she gave it to me.  He wants that wording put in the Will and he is leaving her £1000.  Also to his lovely wife Felicity and again he wants to use those words, the farmhouse and garden as described and the fishing lake with access to the car park etc etc.  It is on a lease at the moment but he thought that she could use the rent.  He has another farm as joint tenants with his brother, A Sprackling and if Richard dies then his brother gets it anyway but should his brother die first and he ends up with it then he is leaving it to his son Simon.  The remainder of the estate is to be divided between his three children as described”.
29.	When she had completed taking her instructions Victoria Kenny departed, meeting Felicity on the way out.  On her return to the office Victoria Kenny prepared the attendance note which I have quoted, and she then asked Helen Gagan to draft the Will, handing over her own attendance note and the Deceased’s “draft will”.  The recollection of Helen Gagan (as recorded in her statement dated 1 December 2006 and made for Larke v Nugus purposes):-
“I specifically remember querying the instructions with Victoria in relation to the farm as the handwritten note was not clear and I queried the words “etc etc” in Victoria’s attendance note in the fourth paragraph after the words “fishing lake with access to the car park”.  Victoria’s response was quite clear in that she said Mr Sprackling simply wanted to leave the whole farm to his wife”.
Helen Gagan therefore prepared a draft will which contained the gift in Clause 3.3 in the terms quoted in paragraph 11 above.  
30.	Victoria Kenny took this engrossed will to Southampton General Hospital on 15 September.  She was accompanied by Gail Woodford, a legal executive.  Gail Woodford gave evidence at trial, and although her evidence was short she struck me as a careful and accurate witness.  She prepared a full attendance note, and I consider that I can rely upon it as an accurate record of events.  
31.	When Victoria Kenny and Gail Woodford arrived at the Deceased’s bedside his son Shon was in the room looking out of the window.  The attendance note records that the Deceased was content for Victoria Kenny to go through the Will with him in his son’s presence.  The note then records that the Deceased “had asked for a copy of VK’s attendance note of their meeting the previous day and this was handed to him”.  Gail Woodford could not recall whether the Deceased read the note.  Giving full weight to the Deceased’s character as a cautious and thoughtful man and to the fact that he was not dealing with Julie Jones (who had advised him in relation to his earlier Will) I consider it probable that the Deceased had asked (when giving his testamentary instructions) to be provided with a copy of the attendance note made that on that occasion, and that when he asked for that copy before signing his Will he did so with the object of reading it, and he did indeed read it, probably as he and Victoria Kenny went through each Clause of the engrossed Will.  Gail Woodford’s attendance note records:-
“He was happy that the wording which he had provided for the specific legacies had been included in the Will”.
32.	When Victoria Kenny and the Deceased reached Clause 5 Joanna came into the room, and she and Shon then left to get a coffee.  Victoria Kenny then went through the remaining Clauses of the Will with the Deceased.  He then signed it with Victoria Kenny and Gail Woodford acting as witnesses.  He said that when he came out of hospital he might want to draw up a more tax efficient Will:-
“but at the moment he just wants to make sure that his wife will be provided for should anything happen to him.  He said that his sons do not know the content of his Will and he is not going to tell them”.
He handed back the copy of the attendance note, and asked that no copy of the Will be sent to his home.  
33.	At trial something was sought to be made of this last instruction:  I was invited to infer both that the Deceased did not trust (or was hostile towards) his sons and that his desire for secrecy arose out of the fact that the farm they had hitherto expected to inherit was now to pass to Felicity.  I am not prepared to draw either inference.  The Deceased knew that there was a degree of acrimony between his wife and his children.  He knew that his wife thought (justifiably or not) that she needed protecting from the children, and that she was making very elaborate arrangements for her “protection” in relation to the Power of Attorney.  He knew that because of the inter-changeability of “Sandilands Farm” and “Sandilands Farmhouse” his personal post would sometimes be delivered to the farm office.  Even if the Claimants are right as to the Deceased’s intentions this Will made significant extra provision for Felicity, both by enlarging her life interest in the bungalow into an absolute interest, and (at the very least) adding to the gift the fishing income (derived from work which had been paid for by the farming enterprise).  I therefore do not think that the arrangements relating to the custody of the engrossed Will and the copy of the attendance note throw any real light on the Deceased’s intentions.  
34.	The conclusion at which I arrive must, of course, be grounded upon a consideration of all the evidence taken together: and that is the approach I have taken. But it is useful for the purpose of exposition to set out a preliminary analysis of the material to which I have so far referred both because it is absolutely central to the questions I have to decide and because its nature makes it inherently reliable.  In order to ascertain the Deceased’s intentions the questions I must ask myself are these.  What intentions are apparent from the “draft will” ie. what does the document mean?  Were the intentions apparent from the draft will altered in the process of giving instructions?  If there is a discordance between the instructions as given and the gift as made can this be accounted for by a change in intention between giving the instructions and signing the will, or does it arise from a mistake which may properly be characterised either as a clerical error or a failure to understand instructions?  On each of these questions the ultimate burden lies on the claimants to show what the intention was, that it continued until the signature of the formal document, and that the formal document embodies a mistake of the relevant type.
35.	Context can be a vital consideration.  But if one looks purely at the words used in the draft Will I consider that the Deceased’s intention is clearly conveyed.
36.	As to Sandilands he is giving Felicity part only. 
(a)	In the expression “SANDILANDS FARM House and PADDOCKS and Garden” the words “house and paddocks and garden” are not mere surplusage. There are not a description of the Farm itself (which included arable land, buildings and the equestrian centre).  They identify the part of Sandilands Farm that is being given.  If the whole of Sandilands Farm is being given, those words would not be there.  
(b)	Where the gift continues “Also the fishing lake” the Deceased was indicating that another part of Sandilands Farm (the field containing the fishing lake) was being given in addition to what had earlier been given.  If the whole of Sandilands Farm (which included the fishing lake) had been given by the opening words the Deceased would not have “also” given the fishing lake.
(c)	Where the Deceased was giving the fishing lake “with access across the farm to the car park and then to the lake” he was giving access across part of the farm that was not otherwise included in the gift.  If the whole farm had been given (which included the lake and the bed of the track way leading to the lake and the car park) those words would not have been there.
(d)	When the Deceased explained that all of the fishing income was to be paid to Felicity he was explaining why he had given this particular income producing asset to Felicity in addition to their matrimonial home.  If the whole farm had been included (with the far greater income that was derived from the letting of the equestrian centre together with Orchard Field and Stable Field) those words would not have been there. 
(e)	When the Deceased explained that he was giving this income “for maintenance and general running costs of Sandilands Farmhouse” he was explaining that the part of the total farm income that he had given to Felicity was to be used for the upkeep of the part of the total farm that he had given Felicity viz “Sandilands Farmhouse”.  If he had given her all of the land and all of the income those words would not have been there.
(f)	When the Deceased said that Simon should get Nyewood Farm and the building should Arnold David die before the Deceased the intention apparent from those words is clear.  Uncle David had to die first.

37.	Felicity says that although the Claimants might appear to have discharged the burden of showing the intentions of the Deceased by reference to the words he used, this ignores the broader context in which the words were used. The Claimants also say that although the words used by the Deceased read literally seem to demonstrate that he intended to give Nyewood Farm to Simon only if Uncle David died first, an understanding of the context will show this is wrong.
38.	The financial and family context in which the Deceased made his last Will occupied the bulk of the trial: it is the core of Felicity’s case –see paragraph 14 of her Defence.  Fairness requires that I address this material fully. Felicity was anxious that in considering the Deceased’s intentions for Sandilands Farm as reflected in the draft will and in the instructions he gave to Victoria Kenny I should bear four matters in mind.  The claimants were anxious that I should bear two particular matters in mind (in addition to the general consideration that the Deceased’s evident desire was for a simple will that would avoid acrimony).  
39.	Felicity’s case was that whilst the Deceased may have expressed himself awkwardly in the draft will it was perfectly understandable that he should wish to leave her the entire farm.  She first drew attention the Deceased’s anxieties arising out of the performance of the meat cutting plant.  On 19 July 2005 the Company’s new accountants dispatched the draft accounts for the year ended 31 March 2005 which were to be discussed at a meeting on 22 July.  They were approved by the Board on 26 July. Whilst gross profit had risen by £64,000, administrative expenses had risen by £110,000.  This turned the previous year’s £40,000 profit into an £8,000 loss on a turn over of over £1 million.  Part of the increase in administration expenses was because of a rise of £25,000 in the wages bill and £54,000 in advertising and promotion costs.  Both of these items were connected with the meat cutting plant.  Moreover, the lay out of the accounts suggested that meat sales amounted to £167,000, whereas livestock costs amounted to £278,000.  The Deceased was worried about these accounts and he subjected them to his own analysis, making hand written notes which included 
“This cannot continue.  The meat business will have to cease!!!”  
and 
“Is it possible to assess profit of meat going through the plant?”  
When he visited his GP on 5 August the Deceased attributed his health difficulties to his concerns over the business.  I have no doubt that he was genuinely worried.  He prepared a memorandum (in his own hand) addressed to his sons and to John Apletree (the book keeper) in which he wrote as follows:-
“After assessing the Company profit and loss accounts 31 March 2005 and having received more detailed information from John Apletree I want urgent action taken to stop the meat side of the business causing the collapse of the whole Company…I want proof of action in what is being done to stop the loss or an immediate closure of this side of the business and sourcing of other markets for our own livestock by the end of August 2005…This was a very successful business that had been built up over many, many years, that I transferred to you both and is still being subsidised by Nyewood and Sandilands Farms being rent free and rental incomes.  I also have a large loan account…from which I receive no income, no interest on capital and no capital withdrawal, just a lot of stress and anxiety, while you both draw incomes and capital which I gave you initially four years…”.
He thought the loss on the meat business was £103,000 from its first trading period.
40.	He did not send this handwritten memo.  Instead Felicity prepared a formal three page letter.  She accepted in cross-examination (and without hesitation) that the tone and wording were hers.  She thought her own draft was insufficiently strong, and she therefore invoked the help of Charlie Barlow (Joanna’s husband).  There were hours of telephone conversations between Felicity and Charlie Barlow discussing the draft and re-draft. Charlie Barlow gained the impression that the Company was on the verge of bankruptcy and that the Deceased stood to lose his entire capital and his income for the rest of his life. It seemed that this was because of the incompetence of Simon and Shon, who had allowed the costs of the meat cutting plant to run out of control to the extent that they had swallowed up all the healthy and hard earned profits from the other parts of the business.  The final draft of the letter asserted that the total loss caused by the meat cutting plant was £193,160.00.  The letter concluded:-
“I am now at the end of my tether at your inability to deal with the situation and it is harming my health.  I have built this business over my life time, exercising my judgment to get it where it is.  It provides you both with your homes and your livelihoods.  When I handed over the day to day running of the business to you last year, it was a healthy, debt free Company.  It no longer is and I am not prepared to see you destroy my life’s work in the space of two years…I want you to reply to me in writing within seven days ie. by Thursday 18 August 2005, setting out what concrete steps you have taken/are taking to stop the losses in the meat business…These savings must be substantial, otherwise the meat business will have to be closed down at the end of August 2005…”.
A letter in this form was sent to Simon and Shon on 11 August 2005.  Although signed by the Deceased and undoubtedly reflecting his general level of concern, the letter owes much to Felicity.  She was undoubtedly hostile to Simon and Shon (to whom she referred both to Charlie Barlow and John Apletree as “those bloody boys”): but her hostility arose not out of any personal interest but out of a concern that the Deceased was miserable at what he saw as a threat to his life’s work.  In an illuminating e-mail to John Apletree, the farm accountant Felicity wrote:-
“We realise how much stress this must cause you but if you need any further help to realise deadlines and get any one Director to toe the line then do not hesitate to call me…I would in no way be as soft a touch as Dick, remember conflict is a routine part of my job and I am not as averse to it as Dick has been.  But time is short and we are vulnerable so I have to protect Dick’s position asap.  Make sure you resist the usual Sprackling corruption of time and agree to postpone matters at their request/inertia until it is too late!”
In my judgment the confrontational approach evident in August 2005 owes much to Felicity.  
41.	It is common ground that Simon and Shon did not reply in writing by the deadline set in that letter.  Felicity’s case is that there was no response.  I find that there was, though of an unstructured family nature, and not of the formal type that appealed to Felicity’s professional outlook.  A letter such as that of 11 August was something that had never happened before, and I do not think that Simon and Shon would simply have ignored it.  It is common ground that they each sought to speak with their father, and that Felicity told them that he did not wish to speak with them.  I consider that this can only have increased their anxiety and their determination to take whatever opportunity arose to speak with their father (for neither of them was a letter writer).  Both Simon and Shon say that they did indeed meet the Deceased when they were about farm business.  In his witness statement, Simon says that he phoned his father about the letter, and that the Deceased said that the letter was Felicity’s idea, that Simon should not get too upset about it, and that it was Felicity’s way of doing things.  An examination of disclosed documents revealed that there had indeed been a 36 minute telephone call from Sandilands Farmhouse to Simon’s mobile phone on 18 August.  Felicity’s evidence at trial was that this was a call that she had made to Simon.  But despite the obvious importance of a telephone call on the day the ultimatum expired, there was no mention of this call in her witness statement:  nor can I think what she and Simon would have talked about for 36 minutes (having regard to the relationship between them).  What is in her witness statement is an assertion that following the lack of response from Simon and Shon the decease became very morose and said that he was definitely heading for bankruptcy and that he had made up his mind to sell Sandilands and move away so that he would not have to put up with the humiliation of his farming friends seeing him bankrupt.  
42.	I do not believe this evidence.  The fear of bankruptcy and a proposal to sell Sandilands farm (on which the meat cutting plant and the farm office were cited) was not something which the Deceased ever discussed with his accountant (whom he saw on several occasions in this period).  On the contrary, there is evidence (which I accept) that even if the Deceased was not having formal meetings with either Simon or Shon or informal correspondence with them, there were chance meetings, and there was ongoing explanation of the accounts, using John Apletree as an intermediary.  Moreover, the disclosure contains a note handwritten by Simon to Shon recording what were the real concerns of the Deceased (having spoken to him) and how these should be addressed on Simon’s return from holiday. I find that this probably records a conversation made after the letter of 11th August but during that month. I find that the Deceased came to understand that the true underlying position was nowhere near as bad as he feared.  Advertising costs were being cut.  One of the butchers had been laid off.  The excessive livestock costs was occasioned by the fact that “livestock costs” was treated as a cost centre for expenses which were in fact incurred partly in relation to other parts of the business (so that the profits from contracting and composting were inflated and those from meat sales artificially depressed).  So it is that when he wrote to his accountant on 25 August 2005 in connection with his plans to withdraw capital from the business within the next eighteen months the Deceased said (in a letter drafted by Felicity) both that the different businesses shared income and costs that could not easily be separated, and that the first year losses from the meat processing plant were £90,000.  Felicity said that this last figure was a typing error and that the Deceased still believed (in the absence of any response from or provision of information by Simon and Shon) that the loss was £190,000.  Given the preparation and consideration of drafts of this letter (including by John Apletree) an uncorrected typing error is not credible.  
43.	I find that by the end of August 2005 there had been sufficient contact between the Deceased and his sons for his immediate panic to have been calmed, and that although he remained concerned at the burdens the meat processing plant imposed on the business as a whole, he no longer regarded the losses as fatal, did not hold the view that his sons were oblivious to the risks, and did consider that the Company would survive provided that his sons listened to John Apletree.  Two pieces of independent evidence confirm that assessment.  First, the Deceased’s accountant prepared a plan for the withdrawal of capital, which included a proposal that there be an objective evaluation of the meat cutting operation (including the desirability of external finance), advised the preparation of detailed profit forecasts and recorded the Deceased’s intention that as soon as the Company had returned to a reasonable level of profitability there should be negotiated a lease at market rental between the Deceased and the Company of the offices, processing plant and farm land at Sandilands. No accountant would have prepared such a plan for a client who thought his business on the verge of insolvency and was insisting upon immediate closure of the meat processing plant.  Second, the GP’s notes record that by 5 September 2005 the Deceased had made a good improvement from the depression point of view and that situational issues were being addressed.  
44.	I therefore do not find that this consideration of the financial context helps me to read the draft Will in sense different from that which the words themselves suggest.  His expressed intentions for Sandilands Farmhouse are entirely consistent with his view of the Company’s business and with his business and family relationship with Simon and Shon. Nor did a consideration of Felicity’s other three points with which I will deal very much more shortly.  
45.	Using passages taken from the same material that I have surveyed in relation to the meat processing plant Felicity suggested that the Deceased was disillusioned by his sons and took the view that their lack of record keeping and inability to handle paper work rendered them unfit to manage the Company.  From this I was invited to draw the inference that the Deceased thought that one of his prime assets (Sandilands Farm) would be in safer hands if it was given outright to Felicity.  It is common ground that Simon and Shon were not good at paperwork and that although their record keeping enabled the farm accountant, John Apletree, to prepare figures on a three or four monthly basis, these could not be graced with the title “management accounts” and did not separately analyse the different profit centres within the business.  It is also common ground that in relation to the operation of the burger van, Simon and Shon did not cause the operator to fill in on a daily basis the proforma accounting sheet which the Company’s new accountants had prepared.  My function is not to speculate on what the Deceased’s testamentary intentions might have been in the light of these deficiencies:  if I were to do so I would think that to suggest that the Deceased wanted to deprive his grandchildren of their grandmother’s inheritance because his sons did not fill in an accountant’s form is absurd.  My function is to ascertain what the Deceased’s intentions were:  I have not seen anything which enables me to read the intentions apparently expressed in the draft Will in some different sense simply because the sons were not good at paperwork.  In particular, the evidence will not sustain a finding that the Deceased believed that only Felicity could be trusted (as is evident from his appointment of Simon as an executor).  
46.	Nor have I been helped in ascertaining the actual intentions of the Deceased by the suggestion that he was withdrawing from the business and intended to sell Sandilands Farm.  His intention to withdraw capital existed at the time of the 2003 will and thereafter. The 2005 discussions with the accountant about realisation of capital do not proceed on the footing that there is to be a sale of the farm:  on the contrary at the end of August 2005 the Deceased was contemplating that the farm would be retained and that when the Company returned to reasonable profitability it would pay a market rent in respect of its occupation.  When, after considerable thought, the Deceased prepared the draft Will he plainly contemplated that he would be retaining Sandilands Farm.  There was evidence (explored at trial) that the Deceased sought valuations of the farm: and it was common ground that a sale of the buildings for development purposes was an option that was under review.  But this context does not enable me to read the draft Will in any different way than I otherwise would have done.  
47.	Finally Felicity relied on the operation of the NFU 20/20 account as throwing light on the Deceased’s intentions with regards to Sandilands Farm.  The 20/20 account was a revolving credit account.  It was in the Deceased’s name (having formed part of the operating capital of the partnership and not having been altered on the incorporation of the Company).  The interest payable on the account was the subject of a direct debit upon the Deceased’s personal account.  The Deceased appears to have believed that he personally guaranteed the credit facility:  though this was not in fact the case.  The cheque book for this account was kept in the farm office and the evidence showed that it was used to provide access to credit in non-routine circumstances.  I have explained that in mid-summer 2005 the Company suffered cash flow problems.  On 1 July 2005 Simon signed a cheque for £12,000 drawing down on the 20/20 account.  The payment was in respect of the rent due for the farm at Chilgrove.  Simon used his own signature on the cheque (although he was not a signatory on the account) and he did not ask his father about it.  The cheque was debited to the account on 12 July and appeared on the bank statement dated 27 July.  The bank statement was sent to Dangstein Farm.  A minimum payment of £344.45 was required to be made and Mr John Apletree arranged for this to be done from Company funds on 3 August.  On 28 July 2005 Mr Apletree’s assistant prepared another cheque in the sum of £7,000 drawn on the 20/20 account and payable to the Company.  This transfer was made in order that the Company could pay PAYE arrears for which it was being pressed by the Revenue.  Shon signed this cheque using what he described as “his version of his father’s signature”.  The responsibility for drawing the cheque was accepted by Mr John Apletree.  The Deceased came to learn of the use of the 20/20 account by the drawing of these two cheques.  He probably did so because Simon or Shon provided him with a copy of the 20/20 bank statement.  According to Charlie Barlow Felicity thought this was fraud and forgery.  She told Charlie Barlow of this in the course of the drafting of the letter of 11 August:  he gained the impression that Shon was misusing Company funds and that it might bring about the collapse of the business.  Felicity was particularly concerned about this, to the extent that she persuaded John Apletree that a letter of apology for the “misuse” of the 20/20 account was required from himself, Simon and Shon.  This was duly provided by 6 October 2005.  I do not consider that the Deceased himself was anywhere near as concerned about the use of this account.  He certainly signed a letter prepared for him by Felicity requiring the account to be closed:  and there is one reference to it in his handwritten notes (from which it appears that at the end of August 2005 the Deceased had agreed with John Apletree that the account should be closed).  I find that this was not a significant factor that weighed with the Deceased at the time when he prepared the draft instructions and I do not consider that the occurrence of these events illuminates the meaning of the draft Will in any way.
48.	So for all the time that was taken up with these matters at trial in the end I do not think they assist in interpreting the Deceased’s expression of his intentions.  
49.	  I turn to deal with the context that was relied upon by the claimants.  First, there was unchallenged evidence from Joanna that on 14 September 2005 the Deceased had told her that he was going to change his Will, and that the changes concerned Joanna because she had not done very well in the last will.  From this I was invited to infer that it cannot have been the Deceased’s intention to leave the entire farm to Felicity.  Under the 2003 Will the Deceased had left a memorandum of wishes which (if followed) would have given Joanna one fifth of the residue, which contained all of the farmland at Sandilands Farm and the reversion expectant on Felicity’s life interest in the bungalow.  If the whole of Sandilands Farm was given to Felicity in the last Will Joanna (far from having her position improved) would be substantially worse off.  This point has some force, but ultimately has not weighed with me.  The Deceased’s words to Joanna are capable of meaning that, relative to her brothers, her position would be improved (in that she would take equally with them): they do not necessarily mean that in absolute terms Joanna would be better off (given that there is no doubt that the Deceased was intending to make improved provision for Felicity).  
50.	The second matter on which the claimants relied was the Thorney Island tenancy, and the way that (in his memorandum of wishes) the Deceased had addressed the vesting of the tenancy in the survivor of himself and his brother.  I agree that this context suggests that the Deceased made an error in the draft will in the expression of his true intentions.  Whereas he meant to write “If I predecease my brother” what he actually wrote was “if my brother predeceases me”.  The context strongly suggests that such a mistake was made. If the Deceased was the first to die then David would take the tenancy by survivorship and Simon and his family would have nowhere to live unless he was given Nyewood. But if the Deceased was the survivor then Simon was safe (and there could be a transmission of the tenancy to the Deceased’s sons); so Nyewood could remain in residue. So much is explained in the 1999 will, Julie Jones’ attendance notes and the Memorandum of Wishes. Everyone agrees that when you look at the context you can see that what the Deceased said was not what he meant.
51.	Having looked at the Deceased’s intentions as he set them out, considering them on their face and in the context in which they were recorded, it is now necessary to see how those intentions were translated into instructions for his Will.  The process of taking instructions was recorded in Victoria Kenny’s  attendance note of 14 September, and the process of drafting the Will in Helen Gagan’s statement.  But I also received the direct evidence of Victoria Kenny as to what transpired when she took instructions from the Deceased.  Ms Kenny has suffered a stroke and some spinal problems between September 2005 and the date of the trial.  Her partner Julie Jones was protective of her and said that I must expect that she would not be able to recollect things.  Miss Kenny had given a Larke v Nugus statement on 1 December 2006:  and she made a witness statement for the purposes of the action on 2 April 2008.  True enough, when asked difficult questions about either she told me that she could not recollect.  But making every allowance I can for her health difficulties, I have nonetheless come to the view that she was not a satisfactory witness on whose evidence I could rely if unsupported by documents.  
52.	In her December 2006 statement (confirmed in her April 2008 statement) she explained that her contemporaneous attendance note of 14 September 2005 was incomplete, and that she had omitted certain matters “because I thought that had they been set out in print they would have been upsetting”.  These matters were:-
(a)	That the Deceased said that he wanted to leave the farm to his wife as she was the only person to whom he could entrust it;
(b)	That if he left the farm to the children it would be torn apart;
(c)	That the Deceased was angry because he felt that his family (but not Felicity) had let him down.
She said that these unrecorded instructions lay behind her direction to Helen Gagan that the Deceased had intended to leave the entirety of Sandilands Farm to Felicity.
53.	The clear conclusion I have reached is that this is a false memory, perhaps induced by the spectre of a half million pound negligence claim being brought against the firm.  These are my reasons for that assessment.
54.	First, I am entirely unconvinced by the explanation that these absolutely crucial instructions were omitted from the attendance note on the grounds that they might be “upsetting”.  The attendance note was in essence a private document for the solicitor.  It would only be shown to the parties if there was a dispute about the Will.  If there was a dispute about the Will that is the very circumstance in which the solicitor would need a robust attendance note to cover the area of dispute.  (Indeed, upon the Deceased’s death, Felicity telephoned Owen Kenny to express the hope that the attendance notes were “robust”).  
55.	Second, I do not accept that the Deceased said he did not want to leave the farm to his sons because it would be torn apart.  In his letter of instruction to his accountants dated 25 August 2005 the Deceased had explained:-
“Having first paid me my capital, the boys are then free to decide their own fate and organisation of the Company.  I will not sanction any split in the business until I have been paid in full my capital.  Having handed over management of the Company to my sons some fifteen months ago, it is clear that they are not capable of working together harmoniously.  There is therefore no point in my deciding an appropriate reorganisation of the Company to accommodate each son, as they are old enough to sort out the ensuing conflicts for themselves…My sons must reach their own agreement as to the way forward for the business and their livelihoods after they have bought out my capital”.
Having thought about it, and knowing of the potential for conflict between them, he nonetheless decided to let them sort it out themselves.  
56.	Third, if Ms Kenny received instructions that the entire farm was to pass to Felicity she has to explain why in her attendance note she recorded instruction that the subject matter of the gift was “the farmhouse and garden as described”.  In evidence she told me that “… “farmhouse” is probably just the way I was speaking when dictating”.  But this “mistake in dictating” would leave unexplained the reference to the garden.  In evidence Ms Kenny told me that she could not now recollect how or why the garden was described because “it was many years ago”.  These are profoundly unsatisfying explanations:  I prefer to find that Ms Kenny was accurate and careful in the attendance note she prepared (and which would be shown to the Deceased), and that her note reflected the Deceased’s instructions about the farmhouse and garden.
57.	Fourth, if the Deceased told Ms Kenny that he wanted the entire farm to go to Felicity then she must explain why her attendance note records his desire to make a gift of “the fishing lake with access to the car park etc etc”.  In her evidence she told me that “access to the car park etc etc” was “just a term of art”, that she could not think that it was a reference to or incorporation of the wording of the draft Will, and that it might just refer to general conversation.  This was simply unconvincing.  I prefer to think that Ms Kenny was careful in the attendance note that she made and thorough in the instructions that she took, that she went through the document headed “draft will” and that the “etc etc” which so puzzled Helen Gagan is an incorporation into the attendance note of the words in the draft will which follow the reference to the fishing lake and car park.  
58.	Fifth, I cannot trust the accuracy of Ms Kenny’s recollection in general.  I think is heavily influenced by an attempt to rationalise the evident discrepancy between the terms of the draft will and the document signed by the Deceased.  The omission from the attendance note of crucial instructions because they would be “upsetting” is one example.  Another relates to her evidence as to the signing of the Will.  It will be recalled that Gail Woodford’s note records the presence of Shon in the room (with the approval of the Deceased) as the early part of the Will is read over to him, but that at about Clause 5 Shon left.  In her witness statement (to the truth of which Ms Kenny swore) she said:-
“I recall specifically that as we had reached Clause 5 of the Will and bearing in mind the sensitivity of the contents of the remainder of the Will that I asked [the Deceased] whether or not perhaps his son would wish to go and get a coffee.  He then left…”.
Clause 5 contains a gift of personal chattels to Felicity with a request to comply with the Deceased’s known wishes.  Clause 6 establishes a residuary trust fund.  Clause 7 leaves the residue equally between the three children.  Clauses 8 to 12 contain administrative provisions.  Clause 13 contains a request for cremation.   By no stretch of the imagination can any of this be called “sensitive”.  What might have been thought of as “sensitive” (the identity of the executors, the provision for Felicity out of Sandilands and the gift of Nyewood) had all been covered in Shon’s presence.  This is another false memory.  
59.	Sixth, at trial Ms Kenny sought to buttress her recollection with the assertion that if she had understood that only part of the farm would be passing to Felicity she would have been alert to all sorts of conveyancing questions about access rights and so forth.  This is another ex post facto rationalisation.  The draft will did, of course, deal precisely with access rights.  Moreover the bungalow and its curtilage was a readily separable parcel (the firm’s file notes so record) which was (even as Ms Kenny took her instructions) already the subject of a life interest trust under the “holding will” drafted by her firm without any apparent conveyancing difficulties.  If (as any competent solicitor would have done) Ms Kenny had read the existing Will it is extremely unlikely that she would have thought the enlargement of the existing life interest into an absolute interest would cause any conveyancing difficulties.  
60.	I therefore reject without hesitation Ms Kenny’s recollection of receiving express direct instructions from the Deceased to give Sandilands Farm in its entirety to Felicity.  I am left with his intentions in this regard as set out in the draft Will:  I find that he gave instructions to Ms Kenny concerning Sandilands consistently with the terms of the draft Will, instructions which she recorded in her attendance note.  The Deceased’s intention was that Felicity should have part of Sandilands Farm – the house, garden, paddocks, fishing lake and car park with the relevant access rights.
61.	So far as Nyewood is concerned I am again satisfied that this part of the draft will was discussed when Ms Kenny took instructions: not only is the gift referred to in the attendance note (including information not found in the draft will itself), but on the draft will Ms Kenny has written “son” against Simon’s name. But I am also satisfied that Ms Kenny misunderstood what the Deceased was saying. The key part of her note reads 
“He has another farm as joint tenants with his brother….should his brother die first and he ends up with it then he is leaving it to his son Simon (emphasis supplied)”
The confusion between the land held on a joint tenancy and the subject matter of the gift is evident. It is not a mistake the Deceased would have made. The Deceased himself appears to have been able to explain the position, since the 1999 will and the Memorandum of Wishes contain the gifts which the Claimants and Felicity agree he intended to make in 2005. This rather looks like a conveyancer trying to make sense of apparently absurd instructions that the gift is connected with the death of the other joint tenant. If Ms Kenny had understood that the land held on the joint tenancy was not Nyewood farm she would (having read the file, as she told me she did) have understood what the Deceased was trying to say.
62.	The next question is whether the intention of the Deceased in relation to Sandilands Farm and Nyewood continued up until the time when the Deceased signed his Will saying something different ie. whether the Deceased changed his mind or whether he signed a document containing a mistake.  I am in no doubt that the latter is the true analysis.  
63.	First, the Deceased was a cautious man who had given much thought to the terms of the draft Will.  He is not the sort of man to make radical revisions overnight, and certainly not the sort of man to do so and then not tell his solicitor.  There is no hint in Gail Woodford’s note that the Deceased had changed his mind on any matter overnight.  His intentions were constant.
64.	Second, the Deceased asked to see a copy of the attendance note of the previous day’s meeting.  In my judgment this could only have been because he wanted to be assured that the instructions he had given had been correctly noted.  He would not have asked for the attendance note and then remained silent if he had changed his mind overnight.  
65.	Third, before he was handed the engrossed Will the Deceased was handed a letter from Helen Gagan the purpose of which was to advise him that the Will was not the most tax efficient.  But the letter began:-
“I enclose a will I have prepared pursuant to your instructions…I have put into effect your instructions…”.
Crucially the letter did not draw to the attention of the Deceased that Helen Gagan (who had drafted the Will but not taken the instructions) had entertained a doubt about the Deceased’s instructions and had drafted the Will on the basis of what Victoria Kenny believed the instructions to be.  The Deceased was therefore entirely unaware of the drafter’s doubt, and would have been reassured by the double confirmation that the Will had been prepared in accordance with his instructions..  
66.	Fourth, it is evident from Gail Woodford’s attendance note that the Deceased was anxious that his own wording should be included in the Will.  His attention would therefore have been caught by the words “my lovely wife Felicity” rather than by the ambiguity of the following words “Sandilands Farm…to include the fishing lake with access to the car park”.  These latter words would have sounded close enough to what he had written in the draft Will not to excite attention.
67.	I am satisfied that the Deceased was unaware that there was any difference between (a) his intentions as recorded in the draft Will and the instructions as given and recorded in the attendance note that he had: and (b) the terms of the document he was signing. He did not change his mind. He overlooked a mistake in the Will – a mistake that had arisen from Victoria Kenny and Helen Gagan’s failure to understand his instructions. 
68.	I am equally satisfied that (no doubt partly because of his own error in recording his true intentions in relation to Nyewood) he did not appreciate that Victoria Kenny had misunderstood the position in relation to Nyewood.  Nobody drew to his attention his existing statement of wishes under the holding will and sought his confirmation that he wished to alter the contingency on which Simon inherited Nyewood to the exact opposite of what it currently was.   Suffering from a brain tumour and on the threshold of potentially fatal or disabling surgery he may be forgiven for not noticing Ms Kenny’s confusion of Thorney Island and Nyewood in the attendance note. He did not change his mind. He overlooked a mistake in the Will – a mistake that arose Victoria Kenny and Helen Gagan’s failure to understand his instructions.
69.	I therefore hold that the Will dated 15 September 2005 is so expressed:-
(a)	That as regards Sandilands Farm it fails to carry out the Deceased’s intentions in consequence of a failure by Victoria Kenny and Helen Gagan to understand his instructions; and
(b)	That as regards Nyewood Farm it also fails to carry out the Deceased’s intentions in consequence of a failure by Victoria Kenny to understand his instructions.
70.	The question then arises what Order I should make.  The claimants seek an Order that Clause 3.3 of the 2005 Will be rectified to read:-
“My property known as Sandilands Farmhouse Rogate aforesaid to include the fishing lake with access to the car park”.
71.	It was confirmed to me at trial by Counsel for the Claimants that by “Sandilands Farmhouse” they understood that expression to include the bungalow, the garden, and the two paddocks which together form the peninsula of land on the north eastern border of the farm.  At trial, Felicity raised an issue (not pleaded and not clearly articulated before exchange of skeleton arguments) that the word “paddocks” refers not to the two small paddocks in which the bungalow is set (which Felicity says are together to be regarded as the “garden”) but to Stable Field and Orchard Field, which are the fields let out with the equestrian centre and used as horse paddocks.  Rather than refuse to deal with the argument on pleading grounds I will decide the issue so raised.  I unhesitatingly reject this argument.  It is perfectly possible to refer to fields grazed by horses as “paddocks” (and Felicity produced late disclosure to show that on two occasions in 1996 Stable Field and Orchard Field were referred to in that way by Shon when he rendered an invoice to the tenant of the equestrian centre for grass cutting).  But general usage or specific use by Shon nine years before the Will in dealings with a third party throw no light whatever on what the Decease intended by the use of the word ijn the draft will.  By “the paddocks” he undoubtedly meant the land adjoining the bungalow. First, he had told his accountant in one of his letters that he regarded the control of the land in the immediate vicinity of the bungalow to be important: and that is what the gift achieved.  Second, he would not have wanted to give part only of the land included in the tenancy of the equestrian centre in a Will that was designed to make simple changes.  Third, when he wanted to give Felicity the whole of the land comprised in a lease he knew exactly how to do it, for it is precisely what he did in relation to the lake, car park and fishing rights.  I will accordingly rectify Clause 3.3 in the way sought by the claimants (being assured as to their understanding of the subject matter of the gift so made), provided that it is understood that the short expression “the fishing lake with access to the car park” means all of the property comprised in the licence being negotiated at the time of the Will (and subsequently entered into with Petersfield & District Angling Club on 11 November 2005) 
72.	The claimants also seek rectification of Clause 4 of the Will to read:-
“In the event that I predecease my brother Arnold Sprackling I give absolutely subject to any tax my property known as Nyewood Farm, Nyewood near Rogate, Petersfield, Hampshire to Simon”.
	I will grant that relief.
73.	As a footnote I should add that I have stopped this narrative (lengthy as it is) with the signature of the Will on 15 September 2005.  I was taken at some length also to subsequent events.  The dangers of reading back from subsequent events to assess intention at a prior stage are well known.  I have been able to form a clear view without consideration of that material.  I derive some comfort, however, from the fact that subsequent events seem to confirm my findings as to the Deceased’s true intention and that the Will embodies a relevant mistake.
(a)	On 16 September 2005 (the day following the Will) the Deceased gave Felicity instructions under the Power of Attorney to obtain a valuation of “Sandilands Farm, excluding house and lake, but including equestrian centre and farm buildings ie. meat plant”.  This tends to underline the division which the Deceased had made in his own mind as to what was to become Felicity’s and what was to be used in the business.
(b)	On 11 November 2005 the Deceased granted a licence to trustees on behalf of the Petersfield and District Angling Club of the fishing lake and of the fishing rights on the River Rother.  The licence contained vehicular access over the track way leading to the car park, and a right to park.  It also included a right of foot passage over the fields to the north of Sandilands farm leading the field boundary adjoining the River Rother.  Simon witnessed the licence.  Simon says (and I accept) that the Deceased was anxious that he did so, so that it was understood that fishermen could walk along the field boundaries where there was no defined path and that Simon must leave sufficient headland when ploughing for access to be possible.  This tends to confirm that the land over which this access lay was not to pass to Felicity but would remain under Simon’s control.
74.	Finally, on 22 December 2005 the Deceased made a codicil giving half of his shareholding to Joanna and the other half to John Apletree (to include the balance standing on his Director’s current account).  In doing so he confirmed his Will.  There is no suggestion in the evidence that any consideration was then given to the terms of the Will itself and I do not regard this formal confirmation as of any significance.  The existing mistakes remained undiscovered.  The only relevance the incident has (and it is very slight) is that the Deceased plainly thought his shareholding had a significant value (which it would not have if the land on which the (now profitable) meat processing plant was to pass to Felicity).  Further, he plainly believed that he had a significant residue (sufficient to bear the tax on the shares), which he would not do if the farm had been left to Felicity.  These are small indicators which tend to confirm a view that I have reached on quite other grounds.
75.	I order accordingly. I will deal with the grant separately.

Mr Justice Norris…………………………………………………..6 November 2008