Fraudulent Calumny

Whittle v Whittle (2022) EWHC 925 Ch

Fraudulent calumny involves one person poisoning a testator’s mind by making dishonest and untrue comments about another person’s character for the purpose of encouraging the testator to alter his testamentary wishes in their favour. A testator is the individual making a Will in which they identify to whom his or her property and possessions shall pass to upon their death.

The person making the dishonest or untrue comments must do so with the knowledge that they are untrue or are being reckless in their behaviour as to whether they are true or not.

In summary the elements necessary for establishing fraudulent calumny are essentially:

• The person poisoning the will makers mind made false/dishonest representations to the person making the will
• About the character of other potential or natural beneficiaries who would have probably been expected to have received property or possessions on the death of the person making the Will, but for the untrue allegations;
• The defendant made the allegations in the knowledge the allegations were dishonest or untrue or is reckless as to the truth of them;
• The allegations were made for the purpose of inducing the person making the will to alter his testamentary choices in favour of the person making the untrue claims.

If the fraud is established the will is invalid.

This unusual doctrine has come before the courts recently in what is believed to be only the third occasion for a ruling of its kind.

Background

Gerald Whittle died at the age of 92 in September 2016. Three weeks before his death he changed his will appointing his daughter Sonia and her partner Ray as Executors by which they inherited his estate, except for a gift of his old cars to his son David, with whom he had previously had a good relationship with.

Bristol High Court heard Sonia made a number of false allegations against David.  The breakdown in their relationship came after Sonia encouraged Gerald into thinking David was a thief and a ‘violent man who assaulted women’.  She told Gerald David was a violent criminal who had assaulted women, committed criminal damage, and stolen money from family members and claimed he lived off immoral earnings from a prostitute. 

The court heard evidence that Sonia had told Gerald that David looked for his bank details when he was previously in hospital and stole some of his antiques and classic cars when in fact Sonia auctioned off the antiques herself to frame her brother.   

As Gerald’s health deteriorated, he left his care home on November 10, 2016, and spent his last days at home.

The family contacted solicitors the next day to finalise Gerald’s will, but a trainee legal executive attended.  At the meeting where Sonia was initially present, she told the legal executive David and his wife Julie were both psychopaths and criminals who had stolen money from Julie’s mother.   Having made these false and untrue comments in Gerald’s presence she left the meeting leaving Gerald to finalise his Will instructions. 

When Gerald died, Sonia did not tell her brother leaving him to make his own investigations.  David had to conduct his own search to find out about his father’s death discovering two months later he had been excluded from the estate, other than the car collection. Sonia admitted making ‘negative comments’ about David on November 11, 2016, but claimed ‘truthfulness in the comments made’.

Decision

The court set aside Gerald’s will finding that Gerald had possessed full understanding and capacity to make his Will but finding his decisions had been induced and influenced by the false and untrue representations made by Sonia.  

The court found there were deliberate allegations and claims made by Sonia for the purpose of entirely benefitting herself and her partner.   In setting aside the Will Sonia was ordered to pay the costs of the proceedings.

This decision illustrates the potential for success in setting aside a Will where there is strong evidence that a Will writers mind had been poisoned against an intended beneficiary.  Notes from the Will writers file in this case of serious claims and allegations, including criminal events of which David had no criminal record, together with the auctioneer’s records showing Sonia had sold the deceased’s items was strong evidence of false statements to support poisoning of Gerald’s mind. 

Securing evidence early is essential in cases of this type.  Good file notes at the time the will is prepared explaining the reasons behind changes to gifts and who an estate is being left to are essential to understand how and why a Will remains rational.