What is Fraudulent Calumny and can it invalidate a Will?

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Hitting the national headlines recently was the case of Whittle v Whittle & Another, which attracted interest as it involved the rare legal principle of ‘fraudulent calumny’.

Fraudulent calumny is where person A poisons the Will maker’s mind against person B by casting dishonest aspersions on person B’s character, when person A knows the aspersions to be untrue or not care if they are true, to reduce or eliminate person B’s entitlement under the Will. If this can be shown, then the Will can be set aside.

There are a number of reasons why the validity of a Will might be challenged, such as lack of testamentary capacity, lack of knowledge and approval, forgery, a failure to comply with one of the required formalities or undue influence.

At first glance, there may appear to be some overlap between undue influence and fraudulent calumny, with both involving a third-party persuading the person making their Will (the testator) to write it with a particular set of provisions. The difference is the degree and type of coercion involved.

What is the difference between fraudulent calumny and undue influence?

In successful claims of undue influence, the Court will have been convinced that the guilty party engaged in behaviour that was threatening to coerce or persuade the testator into a particular course of action.

Where fraudulent calumny has been involved, the testator will have ultimately made their Will of their own volition, but only after having had their opinion of a potential beneficiary negatively affected by the input of another likely beneficiary.

It is a form of influence, but much more subtle than that usually associated with cases of undue influence. Interestingly, someone accused of fraudulent calumny can be cleared of the charge if they genuinely believe the comments made to the testator were truthful, even if in reality they are not.

Fraudulent calumny explained in Court

The case of Whittle v Whittle & Another involved the estate of Gerald Whittle and the claimant David Whittle, who was the son of the deceased.

The defendants, accused of fraudulent calumny, were Sonia Whittle, the daughter of the deceased, and her partner Ray Spicer. Gerald Whittle died on 7 December 2016, aged 92, and his Will appointed Sonia and Ray as joint executors.

In the Will, David was bequeathed the car which had belonged to the deceased, as well as the contents of his shed and garage, with the proviso that he had to clear both buildings. The rest of the estate, valued at approximately £1m was left in equal shares to Sonia and Ray.

In April 2020, David issued legal proceedings challenging the validity of the Will, claiming the defendants had procured the contents of the Will on the basis of fraudulent calumny, undue influence and a lack of knowledge and approval on the part of the deceased.

The case for fraudulent calumny hinged upon David’s claims that Sonia had made false statements to the deceased on a number of occasions. These statements included Sonia’s allegation that David had stolen money from his mother-in-law and was a violent individual who assaulted women.

She also alleged that David’s wife was a prostitute and that he lived off her immoral earnings. Other statements from Sonia were directed to a Legal Executive who was attending the home of Gerald Whittle to take instructions for his Will and were made in his presence.

To the Legal Executive, Sonia stated that David and his wife were ‘psychopaths and criminals’ and that they had ‘removed large sums of money from an account belonging to [his mother-in-law]’.

Other statements made by Sonia included allegations that David had visited the home of the deceased while he was in hospital, searching for his bank account details and PIN numbers, and that David had committed criminal damage.

Although the defendants denied the fraudulent calumny accusation, Sonia admitted making negative comments about David to the Legal Executive, claiming the comments were truthful. She also claimed she was not present when the Will instructions were given to the Legal Executive by Gerald Whittle.

One noteworthy aspect of the trial was the uncooperative behaviour of the defendants. They failed to provide full details of their position and were subject to requests for information from the Court.

They also chose not to pay a costs order against them, which led to them ultimately being excluded from defending the claim. Perhaps the clearest indication of the strength of the position adopted by the defendants is the fact they did not even attend the trial.

Statements made must be believed to be true

No documents or witness statements were provided to support the allegations made by Sonia. This meant District Judge Woodburn had no evidence to consider when determining whether Sonia actually believed that the statements she made about David to the deceased were indeed truthful.

Without evidence from the defendants, the Judge based his decision on evidence from David, which included a letter from Thames Valley Police confirming that an investigation into claims made by Sonia of criminal damage had resulted in no charges.

A witness statement from David’s wife, stated that she had never known him to be a criminal or violent individual. On the basis of the evidence, the Judge concluded that not only were the slurs made by Sonia untrue, but there was also no evidence to indicate Sonia believed them to be true.

Once decided, the rest of the judgement hinged upon whether the Judge felt Sonia’s untrue comments about David had turned the deceased against him, and whether this resulted in the deceased making a Will with less provision for David than would otherwise have been the case.

In setting out his findings, the Judge who described the behaviour of Sonia as ‘disgraceful’ and ‘appalling’, referred to evidence that indicated Sonia’s comments had influenced the thinking of the deceased.

This evidence included the fact that just a week after the comments were made, the deceased had asked David whether his wife was a prostitute, whether he had been breaking into other people’s homes, and whether he had struck a girl 40 years previously.

In addition, the Judge referred to the fact that the deceased was present when Sonia made her defamatory comments to the Legal Executive and that taken together, these examples demonstrated that the Deceased’s thinking had been impacted and his opinion of David damaged.

Another consideration was the fact that no Will had been made previously, meaning that the rules of intestacy would have applied upon the death of the deceased. Under these rules, David would have benefited much more than under the provisions in the deceased’s Will.

It was the opinion of the Judge, therefore, that the Will had been written primarily in order to minimise the proportion of the estate left to David. On the basis of this evidence, the Judge found that fraudulent calumny had been proven as grounds for the Will to be declared invalid.

The burden of proof, that comments were made and that they influenced the change in a Will, is such that successful claims of fraudulent calumny are relatively rare, with individuals usually opting for grounds such as a ‘lack of knowledge and approval’.

The fairness or otherwise of the provisions of any Will are not for the Court to decide, just the circumstances under which the Will was made and the influences which were brought to bear upon the deceased.

If you have any concerns about a Will or need help drafting or amending one, please get in touch with the experienced Wills and Estates team here at Buckles. Equally, you can contact our dedicated and experienced contentious probate team who provide expert advice on the options to challenge or respond to a challenge against a Will or estate.