Fraudulent calumny: poisoning the mind of a testator

If a loved one has passed away and you believe that they were tricked into leaving a Will that they would otherwise have not left behind, you might have valid grounds to challenge the Will through legal proceedings. There are several grounds upon which a Will can be contested, one of which is fraudulent calumny.

What is fraudulent calumny?

Fraudulent calumny deals specifically with situations where a person has deliberately caused the person making the Will (the testator) to change their Will through fraud. It means that false representations or claims have been made about a beneficiary, and these claims were then used with the intention of changing the testator’s mind about leaving them a gift in their will. Essentially, in fraudulent calumny, the person is alleged to have poisoned the testator’s mind. Fraudulent calumny can invalidate a Will if successfully established.

How do you prove fraudulent calumny?

In order to establish fraudulent calumny, you would need to prove all of the following:

1. Someone made a representation to the testator about you
2. They did so intending that the testator would alter your inheritance, or cut you out of the Will completely
3. They knew that what they represented was false, or they did not care that it was true or false (if they honestly believed the representation to be true, no fraudulent calumny has taken place)
4. There are no other explanations for the testator to disinherit you.

Why is fraudulent calumny difficult to prove?

Succeeding with a fraudulent calumny claim can be particularly challenging as every incident of fraudulent conduct must be particularised. This means that these claims rely heavily on the claimant being able to prove their suspicions with circumstantial evidence, including records of conversations, diary entries and notes. As it is likely that the fraudulent conversations would have taken place in private, and the testator is deceased and cannot give evidence, collecting evidence can be difficult.

There may be fewer challenges when it comes to proving that someone has deliberately poisoned the testator’s mind by making false representations. The difficulty usually arises in proving that the representations induced a change in the testator’s intentions as they have passed away and are unable to attest to their motivations.

The relationship between fraudulent calumny and undue influence

Fraudulent calumny bears similarities to undue influence, which is another ground upon which a Will can be challenged. Undue influence occurs where a Will does not reflect the testator’s true wishes because the contents were obtained by coercion.
Fraudulent calumny and undue influence often overlap in practice, and we can see this in a recent case example of Whittle v Whittle & Anor (Re Estate of Gerald Arthur Whittle) [2022] EWHC 925 (Ch).

In this case, Mr Whittle (the testator) was frail and vulnerable towards the end of his life and consequently depended on others, including his daughter. As Mr Whittle deteriorated, his daughter made several false allegations against her brother and told her father that her brother was a violent criminal who assaulted women and stole money from his family.

She also told Mr Whittle that her brother’s wife was a prostitute and he supported himself immorally through her income. Mr Whittle subsequently altered his son’s inheritance significantly. Mr Whittle died aged 92 and after his death, his son disputed the validity of the Will on the grounds of fraudulent calumny, undue influence and want of knowledge and approval.

The court found that the daughter had deliberately told Mr Whittle lies in order to get him to cut her brother out of the Will, and the Will was set aside. The court had also found that the Will had been procured on the basis of forceful and repeated deliberate falsehoods by the daughter and these unduly influenced Mr Whittle while his health was deteriorating.

This case illustrates that fraudulent calumny and undue influence are similar and can be found together, but they differ on the degree of coercion that is involved.

What should you do if you suspect fraudulent calumny?

If you suspect fraudulent calumny occurred during the production of a Will, you should seek legal advice as a matter of urgency to confirm whether you have valid grounds to submit a claim. It is important to act as quickly as possible when contesting a Will to ensure that the claim is issued before probate is granted. Contesting a Will after probate is possible, but it is easier to raise a claim beforehand.