Fraudulent calumny sounds like something from a Dickens novel but it is the legal term used to describe causing someone to change their Will through deliberate deception.
It usually happens in family circumstances, for example where a parent is persuaded to draft their Will in a certain way because their perception of child 1 had been altered, or “poisoned” by child 2. Child 2 must either know that the statements they are making are false or not care whether they are true or false. This is essentially what happened in the case of Whittle v Whittle.
The Case
Gerald Whittle died in December 2016, less than one month after he had executed a Will. Under the Will, his son David received all his cars and the contents of a garage/shed. The balance of his estate was left to his daughter Sonia and her partner.
In April 2020 David issued a claim to have the Will set aside on the basis of fraudulent calumny and undue influence. He claimed that Sonia and her partner, who were the defendants to his claim, had made false allegations to their father, such as accusing David of stealing from his parents, that he was a violent man who assaulted women and that he and his wife were “psychopaths and criminals”.
The court commented that evidentially Sonia and partner had “locked themselves out” of the proceedings by a series of extraordinary and deliberate failures to comply with court orders or exchange evidence to support their contentions. On the evidence presented to the court, it was clear that the nasty slurs on the character of David and his wife were not merely unproven, but “strident, forceful and repeated falsehoods”.
The court then turned to whether those falsehoods tainted Gerald’s mind to the extent that he was compelled to exclude David from a more substantial share of the estate. Given Gerald’s frail and deteriorating condition close to the time he wrote his Will, the court concluded that he had been overborne by his daughter’s “repeated peddling of falsehoods” about her brother.
Ultimately, the court found that fraudulent calumny had been made out in the case and furthermore Gerald had also been unduly influenced to make the Will with a view to marginalising his son.
The Will was set aside, resulting in the father’s estate passing in accordance with the rules of intestacy. As a result David was entitled to a much larger share of the estate than under the Will. The daughter and partner were ordered to pay the costs of the case.
What does this mean?
The burden of proving fraudulent calumny rests on the person bringing the claim, and it is not easy to prove, particularly because the false statements will often be made behind closed doors in the absence of independent witnesses. Establishing that the false statement has then caused someone to alter or draft a Will so as to exclude a beneficiary is also a difficult element to prove.
We advise on all matters relating to the creation and challenging of Wills. For more information please contact Tom Hewitt or Kevin Kennedy.
Written by Tom Hewitt, Kevin Kennedy and Lydia Morris.