Fraudulent calumny and undue influence: the High Court determines the validity of a will

The High Court has examined the circumstances in which a will can be set aside on the basis of fraudulent calumny and/or undue influence. This decision is relevant to those wishing to challenge the validity of wills on the basis they were procured improperly, and to those who are seeking to defend such a challenge.

In Whittle v Whittle & Anor (Re Estate of Gerald Arthur Whittle) [2022] EWHC 925 (Ch), the High Court set aside a will on the basis it was procured by fraudulent calumny or, in the alternative, undue influence. The High Court's judgment focused primarily on fraudulent calumny and reiterated that the test for fraudulent calumny requires analysing the impact of any representations made to influence the will, the objective and perceived truthfulness of those representations, and whether the claimant would have been included as beneficiary (but for the representations).

Simply put, fraudulent calumny occurs where a beneficiary of a will makes untrue comments to the testator about the character of another potential beneficiary in order to reduce their entitlement under the will. Such claims are notoriously difficult given the high burden of proof on the claimant. Undue influence in wills disputes differs subtly from fraudulent calumny claims as undue influence requires the testator to change their will against their free will as a result of some improper conduct. In fraudulent calumny cases, the testator's mind is "poisoned" against a potential beneficiary such that they change the will by their own free choice.

Hussein Mithani, an associate in our disputes and private wealth team considers the decision in further detail below.

Background

The claim concerned the estate of Gerald Arthur Whittle ("Gerald"). Gerald executed a will on 15 November 2016 and appointed his daughter (Sonia) and her partner (Ray) (together the "Defendants"), to be the co-executors of his will. Gerald passed away on 7 December 2016 and left the bulk of his assets to the Defendants. He left his son, David (the "Claimant"), his cars as well as the contents of his shed and garage (subject to the Claimant clearing the shed and garage).

The Claimant claimed that the will was procured on the basis of fraudulent calumny and/or undue influence. The Claimant alleged that the Defendants made false representations to Gerald and that those representations had the effect of compromising his position under the will. The Claimant alleged that such comments were made in private and while a trainee legal executive was meeting with Gerald to draft his will. In particular, the Claimant noted that Sonia, the First Defendant, made the following comments about him:

1. He had stolen money from his mother-in-law.
2. He was a violent man who assaulted women.
3. His wife was a prostitute and that he was living off her immoral earnings.
4. Him and his wife were “psychopaths and criminals".
5. He committed criminal damage.
6. He went through Gerald's home, whilst he was in hospital, and looked through his papers for bank account details and PIN numbers.
7. He had committed criminal damage.

Judgment

It is worth noting that in written evidence, the Defendants agreed they had made "negative comments" about the Claimant but claimed that those comments were true to the best of their knowledge. However, the Defendants lost their right to defend the claim through oral proceedings as a result of not complying with a court order and failing to disclose and exchange statements of fact with David.

The judge premised his assessment of fraudulent calumny by referencing the judgment in Edwards v Edwards [2007] WTLR 1387. Edwards v Edwards gave a broad overview of the factors relevant to proving fraudulent calumny. Following this reference, the court narrowed these factors into a three-stage test to establish fraudulent calumny. According to this test, fraudulent calumny can be established where it is proven on the balance of probabilities that:

1. The defendant(s) poisoned the testator's mind against the claimant
2. The claimant would be a natural beneficiary of the will but for the defendant's alleged actions
3. The defendant(s) either knew the statements made were false or did not care whether they were false

The judge found that Gerald's mind was poisoned by the false representations based on evidence which indicated a stable relationship between Gerald and the Claimant – in contrast with the suggestion in the will that Gerald felt "estranged" from the Claimant. The judge found no evidence to suggest that Gerald was going to draft a will prior to the Defendant's statements. Therefore, the judge found it likely that the Claimant's position in Gerald's estate would have been determined by the laws of intestacy but for the Defendants' actions. The judge also found it likely that the statements were objectively false, and that the Defendants believed them to be false. On that basis, the judge found the will was procured by way of fraudulent calumny.

The judge then turned to undue influence and found that this aspect of the claim was also made out. The judge only briefly addressed the claim for undue influence and found that the First Defendant unduly influenced the Claimant by changing the locks on Gerald's house (to exclude the Claimant), peddled falsehoods about the Claimant, and changed the name of Gerald's next of kin from the Claimant with the hospital and care home.

The court's decision was that the will was pronounced against and the Claimant was appointed as administrator of Gerald's estate.

Comment

It is important to note that there is a high burden of proof on the Claimant for proving fraudulent calumny. It would be fair to say that in this case the Defendants effectively locked themselves out of the trial due to a failure to comply with court orders and, therefore, the evidence submitted by the Claimant on this matter was undisputed. This no doubt assisted the Claimant in overcoming this high burden of proof and highlights the importance of complying with the Court's directions.