In what is believed to be only the third ruling of its kind since 2007, David Whittle successfully challenged the will of his late father in the High Court last week on the grounds of fraudulent calumny.
What is fraudulent calumny?
Fraudulent calumny occurs when a beneficiary of a will makes untrue comments to the testator about the character of another potential beneficiary with the intention of reducing or even excluding entirely that beneficiary’s entitlement under the will in their favour.
The person making the comments must do so with the knowledge that they are untrue or with the person being reckless as to whether they are true or not.
Unlike undue influence where a testator will have been coerced by another into changing their will rather than by their own free will, where fraudulent calumny is exerted upon a testator they will have changed their will by their own free choice but as a result of a change of perception of a potential beneficiary based on the untrue comments made about them.
Background to the case
Gerald Whittle died, aged 92 in December 2016, just three weeks after executing a new will appointing his daughter, Sonia and her partner, Ray as executors. Under the new will Sonia and Ray also stood to inherit the entirety of Gerald’s estate, save for a bequest of his old cars to his son, David.
Sonia failed to tell David of his father’s death and also attempted to hide the circa £1m inheritance of antiques and classic cars from him. However, when David learnt of his father’s death and the contents of his new will, he issued High Court proceedings seeking to challenge the will on the basis of fraudulent calumny.
David told the court that he had a good relationship with his father and had visited him at least weekly since his mother’s death in 2005. He also claimed that he and Julie had provided support for him since the death of his mother.
He gave evidence in respect of some incidents of untruthful comments about him made by Sonia including a telephone call in October 2016 when Sonia accused him of being a “thieving little b***” and of being a “pimp, living off immoral earnings of a prostitute.”. The day after this telephone call he told the court that he visited his father who at the time was resident in a care home. Prior to entering his father’s room he overhead Sonia telling his father that David had stolen money from Julie’s mother and that he was a “violent man who assaulted women”. David interrupted the conversation and walked into the room where, in the presence and hearing of Gerald, Sonia proceeded to tell him “you’re a c*** and thieving f*** b***”.
Gerald remained at the care home until 10 November 2016 when he was discharged back home. The following day, Gerald’s solicitors visited him at his home for the purpose of taking instructions for a new will. During a meeting, when initially Sonia was present, she had told the solicitors’ representative, a trainee legal executive that David and his wife, Julie were both psychopaths and criminals who had stolen large sums of money from Julie’s mother. She also made claims that David had been looking for Gerald’s bank details whilst he had been in hospital and that he had stolen his antiques and classic cars. Wrongly, she also told them that David and Julie had forced their way into Gerald’s house and that the police had issued a harassment order against them.
It was against this immediate background of events that Gerald then gave instructions for his new will.
Sonia and Ray denied fraudulent calumny. Sonia admitted to making “negative comments” about David in November 2016 but claimed that she had a genuine belief in the truthfulness of the comments made.
The Judge’s conclusions
Having heard the evidence from both parties including evidence from David’s solicitors that the antiques which Sonia had alleged David had stolen had in fact been sold by local auctioneers on Sonia’s instructions, the Judge found “on all of the evidence presented to me, it is abundantly clear that the aspersions cast on the characters of both David and his wife, are not merely unproven by (Sonia), but, I find, are completely false.” He went on to describe Sonia’s actions as a “disgraceful” and “appalling” attempt to cut a rightful beneficiary out of a will.
The issue then arose as to whether Sonia’s falsehoods so tainted Gerald’s mind and thoughts as to compel him to exclude David from a more substantial share of his estate.
The Judge found that from August to early November 2016, Gerald was attempting to live with the debilitating diagnosis and condition caused by leukaemia. His health was deteriorating and he was prone to confusion and was physically frail.
He concluded that Sonia “attempted and succeeded in falsely and unduly influencing” Gerald to marginalise or exclude David from a substantial share in the estate. He added that David had “clearly succeeded in proving fraud and undue influence.”.
In all the circumstances, the Judge ruled that the will was invalid on the grounds that it had been obtained due to fraudulent calumny. It is not entirely clear what will happen to Gerald’s estate now following the ruling but it seems likely that Sonia at least will have lost her share of the estate.
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