Fraudulent calumny: poisoning a testator’s mind

05 May 2022

The High Court has recently handed down judgment in the case of Whittle v Whittle [2022] EWHC 925 Ch.

In a highly unusual decision (because many cases in this field focus more on undermining the testator’s capacity), the court set aside the testator’s will even though he possessed mental capacity and understood his will, because his decision had been subverted by lies told to him by his daughter. It forms an interesting apparent counterpoint to the principle of testamentary freedom.

This case illustrates the difficulties and sensitivities that arise in relation to a will dispute and also the increasing trend for the dispute to spill over into the later years of a testator’s life.

Fraudulent calumny: poisoning a testator’s mind

Fraudulent calumny is the traditional term for causing a person, who on any other measure has capacity, to change their will through fraud. It is an unusual claim, in part because of the strict requirements for it to be proved and in part because the involvement of solicitors in the will-writing process ordinarily provides some protection against malign influences.

To prove fraudulent calumny, the disappointed beneficiary claimant must prove six elements. These are:

  1. that the defendant made a false representation;
  2. to the testator;
  3. about the character of a potential beneficiary;
  4. for the purpose of inducing the testator to alter his testamentary dispositions;
  5. in the knowledge that the representation was untrue (or reckless as to whether it was true); and
  6. that the disputed will was made because of the false statements.

All these elements must be proved on the balance of probabilities. This frequently causes difficulties if the fraud is not discovered until after the testator’s death, since there may then be no evidence of what was said to them by the fraudulent party behind closed doors.

This case

The case of Whittle v Whittle provides a textbook example of a successful claim for fraudulent calumny.

The deceased died at the age of 92. While he retained his mental capacity and there was no suggestion that he did not understand his will or tick the usual boxes of mental capacity, the judge found that towards the end of his life his health was failing and he was frail and vulnerable. He was dependent on others, including his daughter.

In this setting, his daughter embarked on a campaign of false allegations against her brother. She told her father that her brother was a violent criminal who assaulted women, committed criminal damage, and stole money from members of his own family. She also told him that her brother’s wife was a prostitute, and that he supported himself immorally from her earnings.

The court found that these claims were deliberate falsehoods peddled by the testator’s daughter to cause him to leave his assets to her instead of her brother, which is what he finally did by the will which was challenged.

In an excoriating decision, the court set aside the will, finding that it had been obtained on the basis of intentional falsehoods by the daughter that were designed to procure this new will and minimise her brother’s ability to challenge it. The daughter was ordered to pay the costs of the proceedings.

Significance of the decision

This decision illustrates the claims that are available where there is strong evidence that a testator’s mind has been poisoned against a particular beneficiary, typically by the person doing well or better than might be expected out of the will as signed. It will often be the only possible claim where there has been a gradual process of turning a testator’s affections against a rival beneficiary and evidence of loss of capacity is light or non-existent.

Importantly, fraudulent calumny can be established in circumstances where the testator had mental capacity to make a will under the test in Banks v Goodfellow. It is not a question of the testator lacking capacity to make decisions, but rather that they took those decisions as a result of false statements.

The concept of fraudulent calumny is seeing a resurgence and we expect to see more claims of this nature over time, as people live longer but are often vulnerable to influence towards the ends of their lives.

However, this case also shows the difficulties that such claims can present. The facts needed to prove these allegations often take place behind closed doors and are unlikely to be recorded in documents or correspondence.

For those anticipating a dispute over a will, this case therefore illustrates the importance of collecting evidence early. The claim was possible only because there was evidence available from during the testator’s life; had there been no evidence of the false claims, the outcome could have been very different.

For will drafters, the case is a reminder of the importance of probing the testator’s instructions and intentions. Solicitors should watch for signs such as sudden changes in a will, especially for swings against an otherwise obvious beneficiary, and ensure as far as they can that the will is the testator’s intention; even if doing so does not prevent a fraud, it may be among the only evidence available of the reasons that a testator changed their will as they did.