With the number of contentious probate enquiries increasing, Laura Abbott of Wright Hassall explains how the validity of a will can be challenged on the grounds of fraudulent calumny.

What is fraudulent calumny?

‘Fraudulent calumny’ occurs when a beneficiary of a will makes a false representation (or a series of false representations) about the character of another potential beneficiary of a will to the person making the will (a ‘testator’ or ‘testatrix’), and this results in:

• the testator/testatrix leaving more of their estate (property, possessions or money) to the perpetrator of the false representation
• the testator/testatrix deciding not to leave any of their estate (or leave less of their estate) to the potential beneficiary who would otherwise have expected to benefit from the will

What is the difference between ‘fraudulent calumny’ and ‘undue influence’?

‘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. When faced with a suspicious will, undue influence is often suspected but rarely pleaded and extremely difficult to prove. This is because, given the nature of it happening behind closed doors, the perpetrator will deny it and the deceased is no longer with us to give evidence.

Fraudulent calumny differs in that the testator/testatrix 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, drip of poison.’

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

Fraudulent calumny and will disputes in recent case law

Edwards v Edwards [2007]

The concept of fraudulent calumny was expressed clearly in Edwards v Edwards [2007]: “The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside”. 

In this case, the deceased left her entire estate to one of her two sons who had led his mother to believe that the other son had stolen from her. The will was found to be invalid because of this false representation. The court heard that the first son had a long-standing dislike and vindictiveness towards his brother and that the deceased was frail and vulnerable, and frightened of her son. 

Christodoulides v Marcou [2017]

Similarly, in the recent case of Christodoulides v Marcou [2017] a will was found to be invalid on the basis that the deceased’s daughter had told lies about her sister to ensure she was disinherited. She led her mother to believe her sister had stolen or helped herself to her mother’s assets and so had already received substantial sums from her, which was simply not the case. 

When is something not considered fraudulent calumny?

It is important to state that if the person makes a false representation but genuinely believes it to be true, this is not fraudulent calumny. It is only if the person knows that the representation is false or if the person is reckless as to whether the representation is true or false that there can be fraudulent calumny. There can also be no other explanation for the disinheritance, ie it would not have happened anyway for other reasons. 

Quite often in these sorts of circumstances a claim based on a lack of knowledge and approval is the preferred route of challenging a will, as it is more likely to be successful. However, it is important not to forget about fraudulent calumny as a potential ground for dispute, as it could well be the missing piece of the jigsaw. 

About the author

Laura Abbott is an Associate in the contentious probate team at Wright Hassall and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

Disputing whether a will has been validly executed

Everything you need to know about testamentary capacity

Disputing a will - the practical considerations

Contesting a will on the grounds of undue influence, fraud, or forgery

Contesting a will on the grounds of 'knowledge and approval'

Image: Getty Images

Publication date: 25 March 2020