The validity of a will can be challenged on a number of grounds, including fraudulent calumny.
Fraudulent calumny occurs when a beneficiary of a will makes what they know are untrue comments to the testator (the person making the will) regarding another beneficiary. Consequently, the testator:
- Leaves more of their estate to the beneficiary who has made the false representation; or
- Decides not to leave any of their estate or less of their estate to the beneficiary who was the subject of the untrue claims.
Examples – Recent Case Law
Fraudulent calumny was clearly explained in Edwards v Edwards [2007]:
“A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty [estate], by casting dishonest aspersions on his character”. If this is proven, then the disputed will is liable to be set aside”.
In the Edwards 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 of his brother, and that the deceased was frail, vulnerable and frightened of her son.
In this case the deceased’s son and daughter were claimant and defendant. The daughter repeatedly made untrue comments to the deceased about her brother which she must have known to be untrue at a time when the deceased was in failing health, including allegations of violence, dishonesty and living off immoral earnings. As a consequence, the Testator reduced the gift to his son, increasing the benefit to his daughter. The court held in favour of the son and upheld a claim of fraudulent calumny and pronounced against the deceased’s will.
What is Fraudulent Calumny Not?
If the person making the false comments genuinely believes those to be true, this is not fraudulent calumny. As mentioned above, it is only if the person knows that the representation is false or if the person is reckless as to whether the representation is false that there could be fraudulent calumny.
If either you consider that a testator has changed their will under suspicious circumstances or you are faced with defending a will challenge on the grounds of fraudulent calumny, we would be happy to have an initial no-obligation discussion of the background and what steps might be appropriate. Please use our enquiry form and a member of our Contentious Probate Litigation Team will be in touch.
