Fraudulent Calumny in Contested Probate: A Contentious Probate Solicitor’s Guide

Fraudulent calumny is a lesser known but powerful ground for challenging a will in contested probate disputes. It arises when one person deliberately poisons the testator’s mind against another potential beneficiary by making false and malicious allegations about their character. Unlike undue influence, fraudulent calumny does not involve coercion but instead relies on deception to manipulate the testator’s decision-making process.

For those facing a potential inheritance dispute, understanding fraudulent calumny is crucial in protecting testamentary freedom and ensuring that a will reflects the true wishes of the deceased.

What Is Fraudulent Calumny?

Fraudulent calumny is a type of fraud that can render a will invalid. It was defined in Re Edwards [2007] WTLR 1387, where Lewison J set out its key elements:

1. False statements – Someone made untrue claims about you to the testator.
2. Dishonesty or recklessness – They knew these claims were false or didn’t care whether they were true.
3. Influence on the testator – The false statements persuade the testator to alter their will to reduce or remove your inheritance.
4. Causation – The will was changed only because of these lies.

The Importance of Dishonesty

A key hurdle in fraudulent calumny cases is proving dishonesty. The Supreme Court, in Royal Brunei Airlines Sdn Bhd v Tan and Barlow Clowes International Ltd v Eurotrust International Ltd, clarified that dishonesty is judged using an objective test:

“The fact-finding tribunal must first ascertain (subjectively) the individual’s actual state of knowledge or belief. The question of whether the conduct was honest or dishonest is then determined by applying the (objective) standards of ordinary decent people.”

This means that even if the defendant sincerely believed their statements, a claim for fraudulent calumny will fail if they were not acting dishonestly. This was demonstrated in Re Boyes, where a daughter falsely convinced her father that her brothers were untrustworthy, but since she genuinely believed it to be true, the will was upheld.

How Fraudulent Calumny Differs from Undue Influence

Fraudulent calumny and undue influence are often confused but are legally distinct:

Recent Case Law on Fraudulent Calumny

Several recent cases illustrate how courts approach fraudulent calumny in contested probate claims:

1. Whittle v Whittle [2022] EWHC 925 (Ch)

In this case, the testator left almost his entire estate to his daughter, Sonia, while his son, David, received only a few personal items. David alleged that Sonia had falsely accused him of theft and violence, which led their father to disinherit him. The court found:

• The testator left almost his entire estate to his daughter, Sonia, giving his son, David, only a few personal belongings.
• David claimed Sonia falsely told their father he was a thief and violent towards women.
• The court found Sonia had lied to manipulate their father and declared the will invalid.

• Speakman v Muir [2022]

A son challenged three wills made in quick succession by his elderly father, alleging that his father’s household assistant, Julie, had falsely told him that his son had stolen from him. The court found:

• A son challenged three wills made by his father, which gradually cut him out of the estate.
• The father’s household assistant, Julie, had falsely accused him of stealing.
• The judge found the father was emotionally vulnerable and easily influenced, leading to the wills being set aside.

• Nesbitt v Nicholson [2023]

The court reiterated the difficulty of proving fraudulent calumny, confirming that if the defendant genuinely believes what they are saying even if objectively false the claim will fail. This highlights the high burden of proof required to succeed.

These cases highlight that it is not enough to simply express negative opinions about a potential beneficiary, the allegations must be false and the defendant must have acted with dishonesty or reckless disregard for the truth.

How to prove Fraudulent Calumny

A claim for fraudulent calumny requires strong evidence, including:

• Witness statements: Did anyone hear the false allegations being made?
• Legal notes: A solicitor’s records may reveal concerns about influence.
• Previous wills: Showing an unexpected change in inheritance.
• Medical reports: If the testator was vulnerable, they may have been more easily misled.

Defending Against Fraudulent Calumny Claims

If a will is challenged on this ground, the defendant may argue:

• The statements were true or made in good faith
• The testator was aware of all facts and made a rational decision
• The testator had independent legal advice before making the will

Fraudulent calumny remains a complex and high-risk ground for challenging a will, requiring clear evidence of dishonesty and causation. While recent case law highlights the potential success of such claims, the burden of proof remains high.

For an initial consultation, contact Krishna Patel on 01732 446371 or email krishna.patel@wellerslawgroup.com