Fraudulent Calumny in Probate Law: A Dive into the Concept and Legal Implications

The goal is to induce the testator to alter their will, disinheriting or reducing the share of the maligned party. While related to undue influence, fraudulent calumny focuses specifically on false accusations made to the testator, as opposed to coercion or manipulation.

Understanding Fraudulent Calumny

Fraudulent calumny is a serious allegation in probate disputes, where one party claims that the testator was tricked into changing their will based on false statements made about another. Essentially, it involves poisoning the mind of the testator by slandering a potential beneficiary in order to alter the terms of a Will more favourably to the person engaged in this activity.

To establish fraudulent calumny, a claimant must demonstrate:

1. False Statements: The statements made about the disinherited or disadvantaged beneficiary must be proven to be false.
2. Intention to Deceive: The person making the statement must have intended to deceive the testator and cause harm to the reputation of the other beneficiary.
3. Effect on the Testator’s Decision: The false statements must have influenced the testator’s decision-making to the point that they altered their will in favour of the person making the false allegations.

Importantly, the testator must believe the falsehoods, and these lies must cause them to change their testamentary intentions. The malice behind the falsehood distinguishes fraudulent calumny from other forms of undue influence, which may involve pressure or manipulation without necessarily involving outright lies.

The Legal Framework

The legal history surrounding fraudulent calumny is rooted in English common law, and several key cases provide guidance on its application.

One notable case is Re Edwards [2007] EWHC 1119 (Ch), which outlines the essential elements of fraudulent calumny. In this case, the claimant succeeded in proving that the will had been influenced by malicious falsehoods, leading to the exclusion of another family member from the Will. The court emphasized that while it is difficult to prove fraudulent calumny due to its reliance on proving both the falsehood of the statements and the testator’s belief in them, it is possible if convincing evidence is provided.

The recent case of Dunstan v Ball [2024] EWHC 2105 (Ch) which we explore in further detail below is a useful reminder of the difficulty of succeeding with a claim of fraudulent calumny, particularly in the absence of compelling evidence.

Fraudulent Calumny versus Undue Influence

Fraudulent calumny is often discussed alongside undue influence, but the two doctrines are distinct. While both are concerned with manipulating the testator’s wishes, they differ in terms of the methods employed.

1. Undue Influence: This involves coercing or pressuring the testator to act against their free will. The claimant must show that the testator's decision-making was overwhelmed by external pressure.
2. Fraudulent Calumny: This is based on dishonesty and deception, specifically through the use of false and defamatory statements to manipulate the testator's judgment.

Undue influence does not necessarily involve deceit, while fraudulent calumny hinges on the false and malicious nature of the statements. Courts tend to treat fraudulent calumny claims with caution due to the subjective nature of the testator’s belief and the difficulty of proving intentional falsehoods.

Proving Fraudulent Calumny: Challenges and Evidence

Fraudulent calumny claims face significant evidential hurdles. The claimant must prove that the statements made to the testator were false. Simply disagreeing with the statements or viewing them as unkind is insufficient; they must be factually untrue. A careful attendance note of the Will instructions can be crucial to a successful claim if there is clear evidence of a testator acting on the basis of untrue statements.

The claimant must also prove that the person making the false statements did so with the intent to deceive. This can be particularly challenging, as it involves proving the malicious intent behind the statements. Courts require a high degree of evidence to establish that the falsehood was not merely an opinion or exaggeration, but rather a deliberate attempt to mislead the testator.

Finally, the claimant must demonstrate that the testator believed the false statements and that this belief directly caused them to change their will. This element adds further complexity to the claim, as it involves proving the testator’s mental state and the reasons behind their decisions.

Legal and Practical Implications

The high burden of proof means that successfully proving fraudulent calumny is relatively rare. It is often used in cases where there is a lack of direct evidence of coercion or undue influence but where it is clear that the testator was misled by false statements.

For lawyers involved in probate disputes, gathering comprehensive evidence is critical. This may involve looking at historical family dynamics, identifying witnesses who can testify to the testator's mental state, and providing documentary evidence that disproves the false allegations. It is also important to examine the solicitor's notes from the preparation of the will, as these can provide valuable insights into the testator's reasoning and state of mind.

The courts are cautious in accepting claims of fraudulent calumny without clear and compelling evidence - as we explore now in the case of Dunstan v Ball [2024]. Nevertheless, it remains a key doctrine in protecting the integrity of a testator’s testamentary freedom and ensuring that wills reflect their true wishes, free from deceit and malice.

Dunstan v Ball [2024] EWHC 2105 (Ch)

The matter in dispute in this case, revolved around the validity of a will between two daughters of the deceased. The defendant, one of the daughters, contested the admission of the will to probate, alleging that it had been obtained through coercion and fraudulent calumny by her sister, the claimant. In particular, the defendant contended that their mother had been unduly influenced into disinheriting her.

Allegations and Core Issues

The defendant's primary argument was that the claimant had improperly influenced their mother to amend the will in her favour, thereby depriving the defendant of any inheritance. The challenge rested on two key allegations: undue influence and fraudulent calumny.

The claimant refuted these allegations and sought to have the will admitted to probate. She maintained that the will accurately reflected their mother's genuine intentions, asserting that no undue influence or misrepresentation was involved in its drafting or execution.

Key Evidence: Solicitor’s Attendance Notes

A critical element of the case was the solicitor’s attendance notes. These notes emerged as a crucial piece of documentary evidence. The defendant argued that the notes should not be admitted into evidence without the solicitor being called to testify, implying that they may have been fabricated or inaccurately recorded.

His Honour Judge Berkley, sitting in the High Court, scrutinised the legitimacy and reliability of the solicitor’s notes. These had been prepared by an employee of a well-regarded law firm, which lent credibility to their authenticity. Upon careful consideration, the court found no evidence of fraud or any basis to suspect that the contents had been misrepresented. Crucially (and perhaps controversially) the absence of oral evidence from the solicitor did not prompt the court to draw any adverse inferences. On the contrary, the court was persuaded of the veracity of the notes in confirming that the will had been executed properly and in line with the testator's wishes.

Judgment and Conclusion

After a thorough review of the evidence, including the solicitor's notes and the surrounding circumstances, the court dismissed the defendant's claims of undue influence and fraudulent calumny. In its judgment, the court stressed that there was no substantive evidence to support the assertion that the claimant had unduly pressured or manipulated the deceased into disinheriting the defendant. The court ultimately upheld the validity of the will and directed it to be admitted to probate.

In rejecting the defendant's counterclaim, HHJ Berkley reaffirmed the significance of documentary evidence, particularly solicitor attendance notes, in disputes concerning wills. The court adopted a cautious approach, demonstrating a reluctance to assume wrongdoing in the absence of compelling evidence. Furthermore, the decision reinforced the principle that, in order to invalidate a will on grounds of undue influence, the courts require clear and convincing proof. The case serves as a reminder that influence alone, without more, is insufficient to overturn a will, particularly in the context of familial relationships.

Broader Implications

The decision in Dunstan v Ball is noteworthy in respect of the evidential weight of solicitor attendance notes in contentious probate claims. The judgment suggests that such documentary records, when prepared by reputable legal professionals, are highly persuasive in establishing the validity of a will. We sound a note of caution, however, given the controversial lack of oral testimony from the will drafter and will watch with interest to see if this case is distinguished in the near future.

If you would like to get in touch please contact Michelle Rose on 0117 314 5246 or at mrose@vwv.co.uk or Fiona Lawrence on 0117 314 5389 or at flawrence@vwv.co.uk, or complete the form below.