What is fraudulent calumny?
Inheritance disputes solicitor, Chris Holten, has recently collaborated with barrister Chris Bryden of 4 King’s Bench Walk on an article about fraud in wills and the often overlooked principle of fraudulent calumny.
The legal term fraudulent calumny can confuse the most experienced trust and probate lawyers. It is a rarely used doctrine, simimar to but distinct from the more commonly known undue influence. However, fraudulent calumny can be used to great effect in inheritance disputes where a will is being challenged on the basis that it includes bequests which would not otherwise have been made but for the actions of a malicious beneficiary.
Undue influence involves influence exercised by coercion that overpowers the free judgment or wishes of the person making the will – the testator. It must be distinguished from mere persuasion, or appeals to affection or pity, which are acceptable. The physical and mental strength of the testator are relevant to determining how much pressure will result in a finding of undue influence. A testator who is weak and ill is more likely to succumb to undue influence than someone who is strong and healthy. It is also the case that a ‘drip drip’ approach can be highly effective in sapping the will of the testator.
Fraudulent calumny on the other hand refers to a situation where a person poisons the testator’s mind against someone who would otherwise be a natural beneficiary.
To succeed with an allegation the applicant must establish that a false representation has been made to the testator which:
1. concerned the applicant’s character;
2. was made with the intention of inducing the testator to alter their will;
3. was known to be untrue (or the maker was reckless as to its truth); and
4. impacted on the terms of the will as a direct consequence.
There will often be a factual overlap between fraudulent calumny and undue influence, especially where allegations are based on inferences without direct evidence of what led to a change in the testator’s wishes.
Because of this overlap the two allegations will frequently be made together in an inheritance dispute. However, inexperienced or non-specialist lawyers often fail to specifically raise fraudulent calumny, which may disadvantage the person who is applying to have the will declared invalid.