We are often approached by people wishing to challenge the validity of a Will, sometimes on the basis of a suspicion that one of the beneficiaries unduly influenced the testator, particularly concerning elderly testators.
Whilst undue influence is a relatively common suspicion, it is notoriously difficult to prove. As there is no presumption of undue influence in respect of a Will, it is for the claimant to prove that there was undue influence and that is never easy when the main witness, the testator, is dead.
There is a sub-species of undue influence which is even rarer – that is the not terribly well-known concept of fraudulent calumny.
What is fraudulent calumny?
‘Calumny’ is the making of a false and defamatory statement about a third party in order to damage their reputation. In the context of a will it broadly means:
Where A poisons the testator’s mind against B, who would otherwise be the natural beneficiary of the testator’s estate, by casting a dishonest aspersion upon their character, the will is subject to be set aside.
Put another way, A lies to the testator about B’s conduct and as a result, B receives less or nothing from the estate.
There are numerous factors which must be present for a fraudulent calumny claim:
- A must have poisoned the testator’s mind against B;
- That poison led to a change in the terms of the Will and there is no other explanation for the testator’s action (if the testator was going to change it in a way that B lost out, regardless of what A said, there would not be a claim for fraudulent calumny);
- B must be a natural beneficiary (effectively a close family member and certainly not a corporate beneficiary such as a charity);
- The dishonest words spoken by A must have been false; but
- If A genuinely believed what they were saying, no claim will succeed.
Vulnerable and elderly
In the few reported fraudulent calumny cases, some common elements appear. First and foremost, the testator is often vulnerable and usually elderly. They may also be isolated and subject to an overbearing person (A), who sadly is most likely to be one of their own children.
Reported cases therefore often tend to involve disputes between siblings. This is perhaps unsurprising given that the claimant (B) must be someone who was a natural beneficiary of the testator.
But making such a claim is not to be lightly undertaken. Fraudulent calumny is an extreme form of undue influence and the evidence to support it must be strong.
Fraudulent calumny – Case studies
In Edwards v Edwards [2007], the deceased mother left her estate to one son (T) and nothing to her other surviving son (J). J and his wife C did much for the deceased, even though they lived some distance away.
T lived with the deceased and was prone to drinking, such that the deceased feared him. T later told the deceased that J and C had stolen money from her. This led the deceased to change her Will in favour of T.
The Will was set aside because of T’s long held vindictiveness towards J, the untruths he spoke about J and the fact that the deceased was frail, vulnerable and frightened of T. There was no other reasonable explanation for the deceased to level false accusations against J to disinherit him.
The Judge found that T had deliberately poisoned his mother’s mind by making untruthful accusations against J and C, to cause her own discretion and judgment to be overborne.
Nesbit v Nicholson re Boyes [2013] involved a dispute concerning a sister and her two brothers over the estate of an elderly testator in which fraudulent calumny was claimed. However, it was found that the evidence wasn’t sufficient to meet the heightened requirements demanded by the nature and seriousness of the allegation, so the proof required for fraudulent calumny was not satisfied. It was found that while the testator was old and frail, he had not been subject to fraudulent calumny.
Claims for fraudulent calumny or undue influence always require a very careful examination of the available evidence and are always specific to their own set of circumstances. It will also usually involve the recollections of third parties such as other family members or close friends.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.