Karen Bower-Brown
Do you believe that a loved one who has passed away has been tricked into a leaving a Will to exclude you on the basis that their mind had been poisoned against you? Whilst there are several grounds upon which a Will can be contested, one lesser-known ground that may be relevant to you is fraudulent calumny.
Fraudulent calumny involves person A poisoning the testator's mind by making false representations or claims against person B, causing the testator to change their mind about leaving person B a gift in their Will. Fraudulent calumny is one of the ways in which a Will can be invalidated if successfully proved.
The requirements for proving fraudulent calumny:
To succeed with a claim, the following would need to be proved:
1. A false representation is made by person A with the intention of persuading the testator to exclude or reduce the benefit to person B in the testator's Will;
2. The false representations are either known by person A to be untrue or person A is reckless as to their falsity;
3. The false representations directly impacted on the terms of the Will.
Why is fraudulent calumny difficult to prove?
Fraudulent calumny claims rely on the claimant being able to provide evidence that supports their suspicions. It can be difficult for a claimant to gather evidence as it is likely that conversations will have taken place in private, and the testator is deceased and therefore not able to give evidence. It can also be difficult to prove that the poisoning of the testator's mind caused them to change their Will. Evidence will normally be in the form of witness evidence but can also be written evidence such as screenshots of text messages and/or Facebook posts and emails.
Successful fraudulent calumny claims
Although fraudulent calumny can be difficult to prove, claimants have been successful.
In the case of Speakman v Muir [2022], the son of the testator successfully challenged three Wills of his father that were made in quick succession before his death. The testator was vulnerable and elderly when he made the Wills. The beneficiaries of the Wills were the testator's housekeeper and her grandchildren. The son alleged that the housekeeper poisoned his father by making dishonest statements about him such as the full statement the son had stolen from his father. The Judge set the Wills aside.
The difference between fraudulent calumny and undue influence
Fraudulent calumny and undue influence are both often referred to together or in the alternative to challenge the validity of a loved one's Will. They both involve a person managing to persuade a testator to draft their Will in a certain way. The key difference between the grounds is the way in which the person influences the testator.
With undue influence, the person forcibly persuades or coerces the testator to change their Will. In this scenario the testator may have no genuine desire to change their Will but instead feels forced into changing it.
With fraudulent calumny, the testator usually already has an intention to change their Will, but the changes are influenced by their mind being poisoned by a person's false representations and claims.
There is often factual overlap between fraudulent calumny and undue influence.
What should you do if you suspect fraudulent calumny?
You should seek legal advice promptly to see if you suspect that a Will was made as a result of fraudulent calumny. Whilst it is possible to make a claim once probate has been granted, it is less costly and the process is usually more straightforward if this is raised before probate is issued. There is also less possibility that the estate will have been distributed.
If you suspect that fraudulent calumny may have taken place but have not seen a copy of the Will, please contact us for advice straightaway.
Please contact a member of our Commercial Litigation & Dispute Resolution Team for a no obligation initial discussion if you wish to consider instructing us with reference to such a dispute or any other dispute relating to a deceased's estate.