Fraudulent Calumny – What is it and can it affect the validity of a Will?

Advice  |   17 August 2022

Written by
Vanisha Gohil, Trainee Solicitor

Whilst Fraudulent Calumny is similar in some ways to undue influence, it is much more subtle and when uncovered can lead to a Will being set aside. This was seen in the recent case of Whittle v Whittle (2022) EWHC 925 Ch where the Claimants were successful in bringing a claim against the executors of the deceased’s estate and the Will in question was therefore set aside.

Fraudulent Calumny explained

Person A makes false/dishonest comments to the testator (person making a Will) about Person B’s character. As a result, the testator becomes influenced by these accusations and therefore Person B’s inclusion or entitlement under the Will is reduced or completely removed. Person B could then challenge the validity of the Will by making the argument that by making dishonest comments about their character, Person A influenced the outcome of the Will.

Fraudulent Calumny is a more uncommon way to challenge the validity of a Will in comparison to those which rely on a lack of testamentary capacity or undue influence and whilst at first sight, there may seem to be some overlap with undue influence, fraudulent calumny can be used as a standalone argument.

Both involve a third party who has managed to persuade the testator to write their Will in a way which makes specific provisions, perhaps including or excluding certain people who ordinarily would or wouldn’t have been entitled to some share of the estate. Looking at fraudulent calumny alone however, the testator would write their Will themselves without any control or coercion, but their decisions will have been clouded by the untrue comments made.

It is important to note however, the person making these comments will be cleared of any claims against them if they are able to prove they genuinely believed those comments to be true.

In light of the above, in order to establish fraudulent calumny, the following factors will need to be proven to the courts:

  • False/dishonest comments were made about a potential beneficiary to the testator which created a negative view in the testator’s mind
  • The potential beneficiary would have been likely to be included in Will and receive some share of the estate had it not been for untrue comments made about them to the testator
  • The person who made the untrue comments, did so with the knowledge that they were all false
  • The purpose of making the untrue comments were to subtly influence the testator’s decisions when it came to writing the Will

If all of the above is successfully proven, fraudulent calumny will be established, and the Will may be set aside by the Courts as a result of this.

Whittle v Whittle (2022) EWHC 925 Ch is the most recent case which involved claims of fraudulent calumny and provides us with insight as to how the above is dealt with in Court.

Background

Gerald Whittle passed away in September 2016. A few weeks prior to his passing, Gerald made some changes to his Will and appointed his daughter Sonia and her partner Ray as executors of the Will. Under the Will, Sonia and Ray inherited Gerald’s estate except for classic cars which were gifted under the Will to Gerald’s son David. Gerald and David had a good relationship up until Gerald heard allegations of David’s character by Sonia. Sonia had made comments to Gerald that David was a thief and a violent man who had assaulted women and that his partner was previously a prostitute and they both lived off her earnings. When Gerald’s health deteriorated, he moved from the care home back into his own home. The family then contacted Gerald’s solicitors to finalise the Will and Sonia made further allegations in front of the solicitor and Gerald and then left the room for Gerald to sign the Will.

Following Gerald’s death, David conducted his own search into his father’s passing and discovered 2 months later that he had been excluded from the Will and only inherited the classic cars.

Sonia admitted making negative comments about David however asserted she made them as they were true.

Decision in Court

The Courts made the decision to set aside the Will as whilst Gerald had capacity and understanding to make it, some of his decisions were influenced and induced by Sonia’s negative comments about David to her father.

They found that the allegations made by Sonia were deliberate and for the purpose of ensuring the Will benefitted herself and her partner. She was therefore ordered to pay costs of the proceedings.

In uncovering the truth, notes were found in the Will writer’s file which showed that David had no criminal record despite Sonia’s allegations of his violent behaviour towards other women as well as auctioneer documents proving Sonia had sold some of Gerald’s antique items which she later used to frame David as a thief.

The findings made by Court in this case shine light on a much more discreet case of influencing a testator’s mind which could otherwise easily remain unnoticed.

If you have any queries or wish to discuss the validity of a Will, please do not hesitate to contact our Contentious Probate Specialists at Thackray Williams LLP on 0208 290 0440 or at jane.macleod@thackraywilliams.com

Related Insights