Fraudulent Calumny And Undue Influence: The High Court Determines The Validity Of A Will

• Published date: 28 July 2022
• Subject Matter: Criminal Law, Family and Matrimonial, White Collar Crime, Anti-Corruption & Fraud, Wills/ Intestacy/ Estate Planning
• Law Firm: Herbert Smith Freehills
• Author: Mr Richard Norridge and Hussein Mithani

The High Court has examined the circumstances in which a will can be set aside on the basis of fraudulent calumny and/or undue influence. This decision is relevant to those wishing to challenge the validity of wills on the basis they were procured improperly, and to those who are seeking to defend such a challenge.

In Whittle v Whittle & Anor (Re Estate of Gerald Arthur Whittle) [2022] EWHC 925 (Ch), the High Court set aside a will on the basis it was procured by fraudulent calumny or, in the alternative, undue influence. The High Court's judgment focused primarily on fraudulent calumny and reiterated that the test for fraudulent calumny requires analysing the impact of any representations made to influence the will, the objective and perceived truthfulness of those representations, and whether the claimant would have been included as beneficiary (but for the representations).

Simply put, fraudulent calumny occurs where a beneficiary of a will makes untrue comments to the testator about the character of another potential beneficiary in order to reduce their entitlement under the will. Such claims are notoriously difficult given the high burden of proof on the claimant. Undue influence in wills disputes differs subtly from fraudulent calumny claims as undue influence requires the testator to change their will against their free will as a result of some improper conduct. In fraudulent calumny cases, the testator's mind is "poisoned" against a potential beneficiary such that they change the will by their own free choice.

Hussein Mithani, an associate in our disputes and private wealth team considers the decision in further detail below.

Background

The claim concerned the estate of Gerald Arthur Whittle ("Gerald"). Gerald executed a will on 15 November 2016 and appointed his daughter (Sonia) and her partner (Ray) (together the "Defendants"), to be the co-executors of his will. Gerald passed away on 7 December 2016 and left the bulk of his assets to the Defendants. He left his son, David (the "Claimant"), his cars as well as the contents of his shed and garage (subject to the Claimant clearing the shed and garage).

The Claimant claimed that the will was procured on the basis of fraudulent calumny and/or undue influence. The Claimant alleged that the Defendants made false representations to Gerald and that those representations had the effect of compromising his position under the will. The Claimant alleged that such comments were made in private and while a...