Helpful Decision On Fraudulent Calumny

In the case of Whittle v Whittle, the validity of the Will of Gerald Arthur Whittle (‘Gerald’) was disputed on the grounds that it was procured, by fraudulent calumny, undue influence, and want of knowledge and approval.

Whittle v Whittle

The facts

Gerald Whittle died on 7 December 2016 at the age of 92 years. He was the father of David (Claimant) and Sonia (Defendant, along with her partner).

In August 2016, Gerald was admitted to Abingdon Hospital. At the time of this admission, Gerald was frail and debilitated by the effects of the leukaemia he suffered. He was discharged back home but, as a consequence of Gerald’s continuing weakness, he was re-admitted to John Radcliffe Hospital later that month. On discharge, Gerald was admitted to the Close Care Home in Burcot.

Gerald’s Will was executed on 15 November 2016. It appointed Sonia and her partner as executors, except for a bequest to David of all the cars owned by Gerald, together with the contents of the shed and garage subject to David clearing them out, left the residuary estate jointly to Sonia and her partner. Gerald attributed, the reason for leaving David the contents of the shed and garage, was because they had become estranged.

David sought to challenge the validity of the Will and argued that what was left to him was irrational and valueless and was more akin to a burden. He claimed that he had a good relationship with his father’ and visited him regularly. Further, David had been listed as Gerald’s ‘next of kin’ on his hospital and care home notes.

David claimed that Sonia falsely represented Gerald in October 2016 whilst Gerald was in the Care Home, that, David had stolen money from his mother-in-law and that he was a violent man who assaulted women. In November 2016, Sonia told a Trainee Legal Executive, who had attended Gerald’s home to take his Will instructions, that David and his wife were ‘psychopaths and criminals’ who had ‘removed large sums of money from an account belonging to David’s mother in law’. Sonia also claimed that whilst Gerald was in the hospital, David went to Gerald’s home and went through Gerald’s papers looking for PIN numbers and bank account details. Sonia wrongly and falsely made other allegations of criminal damage causing the police to investigate a claim of harassment against David.

David gave evidence of a telephone call with Sonia in October 2016 in which she accused him of theft and living off the immoral earnings of a prostitute. The next day when David visited his father he overheard Sonia telling Gerald that David had stolen money from his mother-in-law and that David was a violent man who assaulted women. When David entered the room, Sonia told David he was a thief and used other obscenities to describe him, in the presence and hearing of Gerald.

On a later visit to his father, his father asked him whether he had hit a girl 40 years earlier, if he had been stealing by breaking into homes and if David’s wife, was a prostitute, which David denied as being ‘completely untrue and without merit’.

Sonia and her partner lost their right to defend the claim and the trial proceeded on a consideration of the written evidence only.

Fraudulent calumny

The law in this area may be summarised by the judgment in Edwards v Edwards [2007] WTLR 1387 of Lewison J:

In this case, evidentially, the Defendants did not give disclosure of documents (as might support contentions of assault and/or theft); they did not offer to exchange statements of fact in order to support or otherwise demonstrate belief in the truth of the several contentions of assault, prostitution, burglary, and/or other theft.

David produced a letter from Thames Valley Police following its investigations of allegations by Sonia of Criminal Damage and Threatening Behaviour towards her by David. A ‘thorough investigation’ was undertaken and the conclusions were independently reviewed. There was insufficient evidence presented to the police such as to warrant a prosecution and no charges were brought against David.

The witness statement of David’s wife stated it was completely false that she was a prostitute and that she had never behaved violently nor engaged in criminality. She had never known David to be violent or to otherwise behave criminally.

The Judge found that on all the evidence presented to them, it was abundantly clear that the aspersions cast on the characters of both David and his wife, were not merely unproven by Sonia but were completely false and there was no evidence that Sonia held any reasoned belief in the truth of these lies. In fact, Sonia must have known, at all times, the allegations to be false, harmful, and hurtful.

The next issue considered was if Sonia’s falsehoods so tainted Gerald’s mind and thoughts that he was compelled to exclude David from a more substantial share in Gerald’s estate? Was Gerald so pressured by the weight of Sonia’s allegations as to be persuaded to marginalise David in the way described in the Will?

From August to early November 2016, although Gerald had the capacity to manage his property, affairs, and finances:

• He was living with the debilitating diagnosis and condition caused by leukaemia;
• His health was deteriorating;
• He was prone to confusion and was physically frail.

There was evidence as to the attempts being made by Sonia to influence her father’s thoughts, including the overheard conversation and the questions put to David by Gerald, as well as the tirade unleashed by Sonia to the Legal Executive in the presence and hearing of Gerald and immediately prior to him giving instructions on the terms of his Will. It was found that Sonia attempted and succeeded in falsely and unduly influencing Gerald to exclude David from a substantial share in Gerald’s estate.

It was found that:

• There was compelling evidence that the prime reasons for Gerald making the 2016 Will were to minimise the ‘gifts’ to David and to ostensibly provide a good reason for doing so. Given Gerald’s frail and deteriorating condition in late October/early November 2016 and given the apparent purpose of this Will, it was found that Gerald’s thoughts and actions had been overborne by Sonia’s falsehoods, by her repetition to Gerald, and in his presence and hearing.
• Sonia’s strident, forceful, and repeated falsehoods imparted to Gerald about her brother, during a period of deterioration in Gerald’s physical health as well as, no doubt, increased concern about his prognosis, amounted to undue influence by Sonia of Gerald’s thoughts and actions. The falsehoods imparted by Sonia to Gerald so concerned Gerald that he challenged David on them. Sonia was a constant in Gerald’s home, in his ears and in his mind that there was no respite for him from Sonia’s falsehoods.
• The contention of fraudulent calumny and undue influence by Sonia in order to procure Gerald’s current Will was made out in this case.

Conclusions

The consequence of the findings was that the Will dated 15 November 2016 was set aside and Letters of Administration were granted to David to administer the estate in line with the intestacy rules.

Undue influence occurs when the testator of a Will is threatened, forcibly persuaded, or coerced by another person into changing their Will to benefit that person. Fraudulent calumny differs in that the testator makes the Will of their own free will but having had their perception of a potential beneficiary changed by another beneficiary. It is, therefore, a much subtler form of influence and has been referred to as the drip, drip, approach.

Fraudulent calumny is considered to be a serious allegation. Therefore, the burden of proof is high when relying on this ground.

However, there can often be more evidence of fraudulent calumny than undue influence. The testator can sometimes unknowingly state fraudulent calumny as their reasons for making the Will in the way they did to the professional draftsperson or to family members or friends, as they are not necessarily scared into silence by the perpetrator, as some are when undue influence has occurred.