This is a rare case that has gone to a trial involving something known as ‘fraudulent calumny’; in simple language – a poisoning of the mind of a testator such as to result in the exclusion of an otherwise likely beneficiary from benefit of the testator’s estate, reducing their share or increasing the share of the person responsible for the poisoning of the testator’s mind.

Where such circumstances arise in connection with the creation of a will, the validity of that will can be challenged on the ground of fraudulent calumny. It is a defence to such a claim if the person poisoning the testator’s mind genuinely believes that their comments are truthful, even if they are actually untrue.

Background

This case concerned the estate of the late Gerald Arthur Whittle (“the Deceased”). The claimant in this matter was David Whittle (“David”), who was the Deceased’s son, and the defendants were Sonia Whittle (“Sonia”), who was the Deceased’s daughter, and Ray Ernest Spicer (“Ray”), who was Sonia’s partner (collectively “the Defendants”).

The Deceased died on 7 December 2016, aged 92, leaving a will which was executed on 15 November 2016 (“the Will”), which appointed Sonia and Ray as joint executors. The Will left David the Deceased’s cars and the contents of his shed and garage, subject to David clearing both of these. The Will left the Deceased’s residuary estate in equal shares to Sonia and Ray.

On 2 May 2017, David entered a caveat against the Deceased’s estate and, in April 2020, subsequently issued legal proceedings against the Defendants challenging the validity of the Will. He challenged it on the grounds that it was procured, by the Defendants, by fraudulent calumny, undue influence and want of the Deceased’s knowledge and approval. It is the fraudulent calumny claim on which the most focus was given and which provides an interesting commentary on this means to challenge a will.

In relation to the ground of fraudulent calumny, David claimed that Sonia made false representations about him to the Deceased on numerous occasions. Specifically:

• Sonia stated that David had stolen money from his mother-in-law and that he was a violent man who assaulted women.
• Sonia claimed that David’s wife was a prostitute and that he was living off her immoral earnings.
• Whilst in the Deceased’s presence, Sonia told a Legal Executive, who was attending the Deceased’s home to take will instructions from him, that David and his wife were “psychopaths and criminals” who had “removed large sums of money from an account belonging to [his mother-in-law]”.
• Sonia stated that David went to the Deceased’s home, whilst he was in hospital, and looked through his papers for bank account details and PIN numbers.
• Accusations were also made that David had committed criminal damage.

The Defendants denied fraudulent calumny. Although Sonia admitted to making negative comments about David to the Legal Executive, she claimed that the statements she made were truthful and she genuinely believed this to be the case. Sonia also admitted that she was present at the Deceased’s property when the Legal Executive attended, but that she was not present when will instructions were being given by the Deceased.

Throughout proceedings the Defendants were uncooperative and in the end they did not even attend the trial. This came after several issues during the course of proceedings such as being the subject of requests for information as they had failed to give all details of their position and failure to pay a costs order against them resulting in them being debarred from defending the claim. This perhaps speaks volumes about the position they took and the merit of it.

The Judgment

Given the Defendants’ failure to disclose any documents in relation to Sonia’s allegations nor to provide witness statements, District Judge Woodburn (“the Judge”) had no evidence to consider in order to determine whether Sonia believed in the truth of her comments about David. He, therefore, had to base his decision on the evidence submitted by David. This included David’s witness statement, which addressed his character and how he was security vetted prior to his retirement in 2016, a letter from Thames Valley Police, which confirmed the investigation into the allegations of criminal damage made by Sonia resulted in no charges, as well as David’s wife’s witness statement, which stated she had never known David to be a violent or criminal person. In light of this evidence, the Judge concluded the aspersions as to David’s character were completely false and there was no evidence to suggest that Sonia believed her comments to be true.

The Judge then had to consider, firstly, whether Sonia’s misrepresentations about David had poisoned the Deceased’s mind against him and, secondly, whether this caused him to exclude David from receiving a more substantial share of his estate.

(1) He referred to Sonia’s comments about David and how they had clearly influenced the Deceased’s thoughts. This was evidenced by his questioning of David, approximately a week after the comments had been made, about whether he had hit a girl 40 years earlier, whether he had been stealing by breaking into homes and whether his wife was a prostitute. On top of this, the Deceased was present for Sonia’s rant about David to the Legal Executive. Collectively, these two instances clearly demonstrated that the Deceased’s perception of David had been tainted.

(2) The Deceased did not have a previous will, therefore the rules of intestacy would have applied had the Will not been created, under which David would have benefitted substantially (in comparison to his inheritance under the Will). Consequently, the Judge determined that the prime reason for the Deceased making the Will was to lessen the amount David received.

In conclusion, the ground of fraudulent calumny was successfully proven by David and the Judge pronounced against the validity of the Will.

Summary

This case is a rare example of a will being successfully challenged on the ground of fraudulent calumny. Such cases are not easy to prove but in this case the Judge concluded that Sonia had deliberately lied to her father about David in order to get her father to make a will which would result in David getting less than he otherwise would have done. This scenario is becoming increasingly common in terms of the cases coming to us but an ability to prove what has happened can be extremely difficult as there is often no other witness to the disparaging comments made to the Deceased and a causal link between the comments and the Deceased’s actions is always going to be difficult to prove, although this case shows that it is not impossible. We may well see more cases of this nature as a result.