Fraudulent calumny, a species of fraud, is an increasingly popular type of claim used to challenge the validity of a Will. It is often added to lack of capacity, lack of knowledge and approval, and/or undue influence challenges. However, its difficulty to apply in practice means that such claims are rarely successful.
It is well known that undue influence may occur when a testator’s wishes are influenced and altered as a result of coercion by a third party. Fraudulent calumny differs in that the testator makes their Will of their own free will but does so having had their perception of a potential beneficiary altered. It has been compared to ‘the drip, drip, drip of poison’. Although the end result of procuring the testator to alter their Will is the same, the method is different.
The elements of fraudulent calumny were set out in the case of Re Edwards [2007]. In essence, Person A ‘poisons’ the testator’s mind against Person B by making a dishonest aspersion against Person B’s character. For a claim to be successful, Person B, but for the ‘poisoning’, must have otherwise been a natural beneficiary under the testator’s Will (for example, a child of the testator).
A claimant seeking to challenge the Will must prove on the balance of probabilities that the aspersions induced the change in the testator’s intentions. If they succeed, the Will shall be set aside.
If there are other possibilities or explanations for the change in or creation of the testator’s Will and those other explanations persuade the court to find on the balance of probabilities that the calumny did not induce the change, the claim will fail.
Successful claims are rare as fraudulent calumny is difficult to prove. The fraudulent allegation is often made behind closed doors and in the absence of witnesses, such as the claimant. The testator is also no longer around to give evidence. As a result, many claimants will have insufficient evidence to establish their case.
Dishonesty is a key ingredient in fraudulent calumny claims and the test is objective, rather than subjective. If a person genuinely believes that what they are telling the testator about a potential beneficiary is true, the Will cannot be set aside on the ground of fraudulent calumny.
In the case of Re Boyes [2013], it was accepted that a sister had turned her father against her brothers. However, because she truly believed what she had told her father was true, there was no ground on which to have the Will set aside.
Despite the difficulties surrounding fraudulent calumny, claimants have been successful.
Whittle v Whittle [2022]
In Whittle v Whittle, the testator’s Will left almost all of his substantial estate to his daughter, Sonia. The testator’s son, David (the claimant), received his cars and the contents of his garage. David challenged the Will on the grounds of fraudulent calumny and undue influence. He claimed his sister told lies to their father about him, including that he stole money and was violent towards women. Sonia repeated these allegations to a trainee legal executive who had prepared their father’s Will.
Sonia and her partner were debarred from defending the proceedings as they failed to comply with a previous costs order, or disclose documents and exchange witness evidence. The only evidence in the case therefore came from David. It was held the testator’s Will had been overborne both by Sonia’s coercive behaviour and by her dishonest aspersions about David. This led the Judge to uphold the claims of fraudulent calumny and undue influence.
This case had highly specific circumstances which meant the fraudulent calumny claim was more likely to succeed. The Judge placed considerable weight on the detailed attendance note of the trainee legal executive. It is rare that another person will both witness and take a sufficiently detailed note of the fraudulent allegations. Further, the debarring order made against Sonia and her partner meant that they could not advance any evidence as to her belief in the truth of the allegations.
Speakman v Muir [2022]
In Speakman v Muir, a son (the claimant) sought to set aside three Wills his father (the testator) had made in quick succession before his death. These Wills reduced and then extinguished the claimant’s entitlement to the estate. The beneficiaries of the Wills were the testator’s household assistant (Julie) and her two grandchildren. The claimant alleged the Wills were procured by Julie ‘poisoning’ the testator’s mind against his son as a result of making dishonest allegations about his character, such as that he stole from the testator. Julie was also heavily involved in the preparation of the Wills, which she attempted to downplay in her evidence at trial.
The testator was elderly and emotionally vulnerable when he made the Wills. The Judge found this meant he was easily influenced by Julie’s powerful personality and animosity towards the claimant. The claim was successful and the Wills were set aside.
Any suggestion of fraud is very serious and fraudulent calumny claims have a very high burden of proof. A strong set of facts and carefully gathered evidence will be crucial for success. These claims often centre upon family relationships and even seemingly trivial information can provide an insight into the wider family dynamic.
Will drafters should be alert to requests from clients to exclude close family members from their Will and appropriate follow up questions should be asked to understand the client’s reasoning. Detailed and contemporaneous records prepared by the Will drafter will carry substantial weight when the court is considering a fraudulent calumny claim.
For more information, please contact a member of the Disputed Wills & Estates team.
