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A Case About Fraudulent Calumny: Whittle V Whittle (2022)

The English legal system attaches great importance to the doctrine of freedom of testamentary capacity – one should be free to dispose of their estate as they wish.

However, the law also recognises circumstances when the validity of the Will and its contents can be subject to challenge.

A Will can be set aside on the following grounds:

  • Undue Influence
  • Want of Knowledge and Approval
  • Lack of testamentary capacity
  • Forgery
  • Fraudulent Calumny

What is Fraudulent Calumny?

The definition was set down in the case of 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;

The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false.”

Fraudulent Calumny is usually pleaded alongside other grounds for setting aside a Will and successful cases are few and far between as it tends to be easier to evidence and succeed on other grounds.

The last case where this was successfully argued was Christodoulides v Marcou (2017) until Whittle v Whittle came along in April 2022.

Whittle v Whittle (2022)

David is the brother of Sonia and married to Julie, and together they have two adult sons. Ray is Sonia’s partner. Sonia and Ray are the executors of Gerald’s Will (executed on 15 November 2016). Gerald is the father of David and Sonia who died on 7 December 2016.

Under the Will, David was gifted all cars owned by Gerald along with the contents of the shed and garage at home. The rest of the estate was then left to Sonia and Ray.

Proceedings were issued in April 2020 in which David sought to set aside Gerald’s Will of 2016 on the grounds of fraudulent calumny, undue influence and want of knowledge and approval.

David alleged that Sonia poisoned Gerald’s mind by making false allegations that he had stolen money from his mother-in-law and was a violent man who assaulted women. Sonia defended the claim on the basis that she believed these negative comments were true.

Sonia and Ray failed to comply with court orders and so were debarred from defending the claim and did not attend nor were they represented at the final hearing which proceeded on the written evidence of David and Julie.

Clearly Sonia and Ray were on weak grounds when “evidentially, they have locked themselves out of these proceedings. They did not give disclosure of documents (as might support contentions of assault and/or theft); they did not offer to exchange statements of fact in order to support, or otherwise demonstrate belief in the truth of the several contentions of assault, prostitution, burglary, and/or other theft.”

The evidence from David and Julie led to the judge concluding that the allegations were not only unproven but completely false. David had a good relationship with his father and him and his wife provided support and care. There was no justification for cutting David out of the residual estate or evidence that there had been an estrangement.

The court found that Gerald’s health was deteriorating and as he was suffering from leukaemia and was prone to confusion. This meant that “Gerald’s thoughts and actions had been overborne by D1’s falsehoods about C and his wife; D1 repeated those falsehoods to Gerald and otherwise in Gerald’s presence and hearing. On one occasion, this actually led Gerald to challenge C on some of D1’s allegations.”

The court also found that there had been undue influence so the Will of 2016 was set aside. As there was no prior Will, the estate was then to be dealt with under the rules of intestacy. Letters of administration was granted to David, as well as costs against Sonia and Ray which were to be paid personally rather than from the estate given their unreasonable conduct.

Concluding Comments

Fraudulent Calumny is a serious allegation and the evidential threshold is high to prove on both sides. There is also a lot of overlap with undue influence.

It is not clear if the decision would have been the same if Sonia and Ray had engaged with the legal process, but David provided very compelling evidence in support of his case.

It is important for will writers to carefully consider the circumstances when a Will is drawn up and to make detailed notes about reasons for decisions which seem out of the norm, to avoid any liability coming back to them from disgruntled beneficiaries.

If you would like legal advice on contesting a will, contact our specialist lawyers today on 0808 252 5231 or request a call back