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The 'drip drip drip'​ of poison -damaging comments can lead to exclusion of potential beneficiaries

It seems highly unlikely that when a client is sitting in your office alone, that there could be any fraud perpetrated in relation to the will you are about to draft for them.

However, the practitioner should always be alive to the possibilities of undue influence and detriment which are not simply resolved by one taking instructions from a client without anyone else present.

It is impossible to be completely satisfied that an individual has not been influenced by a potential beneficiary telling the Testator lies, but all practitioners should be aware of ‘fraudulent calumny’. This occurs when a beneficiary of a will makes a false representation about the character of another potential beneficiary to the Testator with the following effect:

· Either the Testator elects to give a greater proportion of his or her estate to the perpetrator; or

· The Testator elects not to leave any of his or her estate to the potential beneficiary who would otherwise have expected to benefit from the estate.

Unlike Undue Influence where the Testator is in some way threatened or forcibly persuaded to change their will, the Testator who is the victim of fraudulent calumny makes the will entirely of their own free will, whilst having already had their perception of the character of another potential beneficiary changed. It is a much subtler form of influence and has been referred to as the ‘drip drip drip of poison.’

Fraud is a less common claim made against the validity of a Testator’s Will as in order to be successful the particulars must be specifically pleaded and the facts and matters being relied upon must be set out clearly to the court.

In essence what the courts are seeking to find is evidence that if false representations are made about a person that leads a Testator to wrongly believe those representations and as a result makes changes to the beneficiary’s detriment, then such changes can be set aside by the courts.

The concept of fraudulent calumny was set out by The Honourable Mr Justice Lewison in Edwards (deceased), Re as follows: “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.”

Whilst fraudulent calumny was successfully relied upon in Edwards it was rejected by the courts in the recent case of Rea [2019] where a challenge was made by three brothers of their mother’s last will where they alleged fraudulent calumny against their sister who was the main beneficiary. The evidence showed that the mother had made a new will of her own volition to benefit her daughter because she had been the mother’s sole carer.

Importantly it is only if the person knows that the comments are false or is reckless as to whether or not they are true that fraudulent calumny can be shown to exist. The courts will also look to the evidence to see whether or not the Testator would have made the amendments to their will in any event.

Where there is an allegation of fraud the strength of the evidence has to rise in proportion to the seriousness of the allegations and circumstantial evidence is insufficient. It must be direct evidence of one party encouraging a set of beliefs about a potential beneficiary without regard to whether or not they are true.

Failure to prove fraudulent calumny though doesn’t leave a potential beneficiary without a claim. In such circumstances a claimant could instead seek to claim undue influence or lack of knowledge and approval in challenging the validity of the will.

With contentious probate on the rise, the well advised client should always provide letters of explanation or beliefs where a controversial gift or omission is considered to avoid costly, time consuming and divisive litigation.

Author: Amanda Perrotton

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