Well-established legal grounds for challenging a will include a lack of testamentary capacity, forgery, lack of compliance with the necessary formalities and undue influence. However, the lesser-known doctrine of fraudulent calumny provides an additional avenue to disputing a will.
Fraudulent calumny occurs when a beneficiary is wrongfully excluded from a will due to a testator’s mind being poisoned against them by lies or malicious misrepresentation, causing the testator to change their mind about leaving them a gift in their will. If successfully established, fraudulent calumny can invalidate a will.
Proving Fraudulent Calumny
Fraudulent calumny is a relatively uncommon legal claim, mainly due to the high evidence threshold for proving it, rendering successful cases infrequent.
This type of claim typically arises when the individual accused of manipulating the testator’s mind has received a larger share of the estate than the claimant deems fair. For instance, if a sibling lies to their father, falsely claiming that the other sibling has been stealing from the family business, the father may feel obliged to leave their entire estate to the lying sibling.
In such a scenario, the claimant may believe that the ‘poisoner’ has taken matters into their own hands by deceiving or distorting facts to the testator to secure a greater inheritance, rather than the siblings receiving the estate in equal shares as would have occurred without the fraudulent manipulation.
To prove fraudulent calumny, the claimant must satisfy the court that the following occurred:
- The testator was subjected to a false representation or series of false representations about a potential beneficiary, creating a negative view of that individual in the testator’s mind. This could include lies about the character or intentions of the potential beneficiary.
- The false statements had a significant impact on the testator’s decision-making process. The claimant must show that, on the balance of probabilities, the misinformation induced the testator to:
a) leave more to the perpetrator of the false representation or
b) exclude or leave a reduced share to the subject of the false representation.
- The perpetrator intended to deceive the testator for their own benefit or to the detriment of another potential beneficiary.
- The false representation was made with the awareness that it was untrue or likely to be false.
Why is it Difficult to Prove?
Proving fraudulent calumny is challenging. To succeed, you must demonstrate through concrete evidence, such as records of conversations, diary entries or written notes, that the testator was intentionally misinformed and consequently changed their will. Merely having a strong feeling or circumstantial evidence that the testator’s mind has been poisoned against you or another beneficiary is insufficient.
However, collecting such evidence can be particularly difficult as such private conversations are often unrecorded and the deceased testator cannot provide testimony. Even if you can prove someone has deliberately poisoned the testator’s mind through false representations, it may still be hard to show that these representations directly induced the testator to alter their intentions since the testator is no longer alive to confirm their motivations.
The courts aim to respect a testator’s final wishes as recorded in their will. Consequently, contesting a will on the grounds of fraudulent calumny requires careful examination of the evidence and a thorough understanding of the circumstances surrounding the will’s creation.
Unsuccessful Claims
One of the key reasons a fraudulent calumny claim may fail is the claimant’s inability to establish a direct causal link between the false statement and the testator’s decision to alter their will. If the court finds other plausible explanations for the change in or creation of the testator’s will and believes that, on the balance of probabilities, the fraudulent calumny did not prompt the change, the claim will be unsuccessful.
Dishonesty is another crucial element of fraudulent calumny. So, if the person making the false statement to the testator honestly believes that the information they provided about a potential beneficiary is accurate, the will cannot be revoked on the grounds of fraudulent calumny. This was seen in the case of Re Boyes [2013] EWHC 4027 (Ch), where it was accepted that a sister had turned her father against her brothers. However, because she honestly believed what she had told her father was true, there were no grounds to set the will aside.
Is it Fraudulent Calumny or Undue Influence?
Fraudulent calumny and undue influence are both types of claims that can be used to challenge the validity of a will.
Both involve a third party who has managed to persuade the testator to draft their will in a specific way, potentially including or excluding certain beneficiaries. However, the methods used to influence the testator differ significantly.
How Do These Types of Claims Differ?
The concept of undue influence involves the testator being forcibly persuaded or coerced by another to change their will. In such cases, the testator may not genuinely desire the changes, but they feel compelled to make them.
Fraudulent calumny, on the other hand, is a more subtle type of influence. Unlike undue influence, the testator in this scenario will ultimately change their will of their own volition but this stems from their mind being poisoned or at least clouded against a potential beneficiary due to untrue comments being made about that individual.
What Typically Characterises A Fraudulent Calumny Claim?
Most fraudulent calumny claims occur in family situations where a parent is persuaded to change their will, disproportionately favouring one child over the others. However, they can also occur in situations involving trusted companions or close friends.
Successful Fraudulent Calumny Claims
In recent years, notable cases such as Speakman v Muir and Whittle v Whittle have succeeded with fraudulent calumny claims.
In Speakman v Mui (2022), the claimant sought to invalidate a series of wills that his elderly, emotionally vulnerable father made shortly before his death. The wills reduced and ultimately eliminated the claimant’s inheritance, instead directing the estate to his father’s household cleaner Julie and her two grandchildren. The claimant was able to produce evidence that Julie poisoned his father’s mind against him, making dishonest allegations about his character, such as a claim that he stole from his father. Additionally, Julie was involved in preparing the wills.
The judge ultimately concluded that the testator was easily influenced by Julie’s domineering personality and hostility towards the claimant, leading to a successful claim and the will being set aside.
Whittle v Whittle [2022] EWHC 925 (Ch) is another recent case involving a successful claim of fraudulent calumny. In this case, David challenged his father’s will, alleging that his sister had poisoned his father’s mind against him with false accusations. The father had left the bulk of the estate to Sonia, his sister and her partner. Sonia had repeatedly told their father that David was violent, dishonest and immoral, and had stolen money from him. Sonia repeated this allegation in front of a trainee legal executive who had been at the father’s house to draw up the will.
The court upheld his claim, setting aside the will and instead appointing him as the administrator of his father’s estate. The court found that Sonia’s statements were completely untrue and that her coercive and dishonest behaviour had overridden the testator’s true wishes, leading him to change his will. Furthermore, there was compelling evidence that the main reason for the father making the new will was to reduce David’s share in his estate.
It is noteworthy, however, that these are rare examples of wills being successfully challenged on the grounds of fraudulent calumny and the bar remains high for these claims to succeed. In Whittle v Whittle, for example, the numerous lies about David’s criminal conduct were easily verifiable as false by the police. Moreover, it involved a very elderly and vulnerable testator and there was also detailed written evidence from the legal practitioner who was present and heard Sonia’s outbursts against her brother.
What To Consider in Such Claims
When evaluating fraudulent calumny claims, it is crucial to have a detailed account of statements made and identify any discrepancies in descriptions of the same event or issue, as even minor details can be significant.
Identifying whether the testator’s wishes are motivated by false information can be challenging at the will-drafting stages. However, if a testator wishes to exclude a close relative from their will, will-drafters should make further questions about the family background to ensure that their apparent testamentary wishes are not the product of fraudulent calumny.
Lastly, it is important to bear in mind that if the fraudulent calumny claim is successful, the will in question will be declared invalid. As a result, any previous valid will would stand in its place or if no such will exists, the testator will be treated as having died intestate.
Next Steps If You Suspect Fraudulent Calumny
If you suspect that a will has been made or altered because of false statements made to a testator, you should seek legal advice promptly. You may have valid grounds to submit a fraudulent calumny claim.
We have a specialist team of experienced will and probate solicitors who have extensive experience in acting for executors, beneficiaries and parties bringing or defending a claim against an estate. Contact us today on 0330 173 6986 or email us to find out more about how we can help you.
