Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider how fraud is likely to be dealt with in a will contest claim

What constitutes “fraud”?

Consider this scenario – person A has two children. He decides to make a Will. His primary asset is his house which he has lived in for the whole of his married life and it has a special significance given so. He doesn’t want it sold. He has two children, B and C. B promises to sell his house on A’s death and out of the proceeds to gift C 50% of the value of A’s house. On the basis of this promise A leaves his house to B in his Will and makes no provision for C.

A dies. After A’s death, B declines to carry out his promise to A to gift 50% of the value of A’s house to C (from the proceeds of sale of his own house). What does C do? There are we suspect 3 possible claims (which can be run together).

  1. Fraud/undue influence

In Edwards v Edwards [2007) EWHC 1119 (Ch) as per the following:
Mr Justice Lewison, provides an oft quoted summary of the law at paragraph 47

  1. There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:
    i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
    ii) Whether undue influence has procured the execution of a will is therefore a question of fact;
    iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
    iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
    v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;
    vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be
    induced for quietness’ sake to do anything. A “drip drip” approach may be highly effective in sapping the will;
    vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. 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;
    viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;
    ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.

He described, inter alia, that in this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud. (our emphasis). Our following earlier blog considered this in general terms:
In this instance, the deceased’s testamentary wishes (A’s) have been compromised by fraud, specifically the promise by B to A. Fraud, in our respectful submission, include the promises of a potential beneficiary to the testator and which induces him/her to make testamentary dispositions in favour of that beneficiary, but whose subsequent actions (or inactions) following the death of the testator are
in contradiction of those promises. The Courts appear to agree. We refer in this regard to the Judgment of Neville J in Tharp v Tharp [1916] 1 Ch 142 which concerned a written promise by a potential beneficiary to the testator’s wife to leave the testator’s estates (following the testator’s death) to another potential beneficiary, causing the testator’s wife to communicate this persuasively to the testator and the testator to then alter his testamentary dispositions accordingly. After the testator’s death, the promise was not honoured and instead the person making the promise appointed the testator’s estates to himself absolutely. There was evidence that he proposed to sell the property and invest the proceeds in a life annuity for himself. Neville J, finding against him (the person making the promise) opined as follows (p151):

“On those facts, how does the matter stand? In my opinion, if a man in dealing with a person who is making testamentary dispositions of his property promises that if a certain thing is done by his Will,
either in his own favour or in favour of some nominee of his, and upon the faith of that promise the testator executes the testamentary disposition, a subsequent action by the person who makes the
promise in contradiction of what he promised is a fraud, and I consider that the jurisdiction of the Court in the cases to which I have referred is founded on fraud and nothing but fraud. (our emphasis)
This in our view, is analogous to the position here.

2. Want of knowledge and approval In our view, this claim can be made out in addition to the above, or as an alternative. In the recent case of Coles v Reynolds & Anor [2020] EWHC 2151 (Ch), HHJ Paul Matthews provides a helpful restatement of the law at paragraphs 93 to 95:

Want of knowledge and approval

93. Mr Jones cited to me the well-known statement of Norris J in Wharton v Bancroft [2011] EWHC 3250 (Ch):

“28. The Daughters in their Re-Re-Re-Amended Defence and Counterclaim assert that Mr Wharton [their father, the testator] did not know or approve the contents of the 2008 Will. My approach to that issue (informed by the familiar authorities as reviewed and commented upon by the Court of Appeal in Gill v Woodall [2010] EWCA Civ 1430) is as follows:-

(a) The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr Wharton understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.
(b) The burden lies on Maureen [the beneficiary of the disputed will] to show that Mr Wharton knew and approved of the 2008 Will in that sense.
(c) The Court can infer knowledge and approval from proof of capacity and proof of due execution (neither of which the Daughters now dispute).
(d) It is not in issue that the 2008 Will was read over to Mr Wharton. The Court of Appeal observed in Gill v Woodall at paragraph [14], that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption that it represents the testator’s intentions at the relevant time.
(e) But proof of the reading over of a will does not necessarily establish ‘knowledge and approval’. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.
(f) So the Daughters must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.
(g) It is not for them positively to prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.
(h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.”

94. The judge further said in that case:

“29. A challenge on the grounds of want of knowledge and approval is not precluded by the Daughters’ admission of testamentary capacity. There are plainly cases in which the Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but needs to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, ie understand what he was doing and its effect: see Hoff v Atherton [2004] EWCA Civ 1554 at [64].”

95. In the present case, as I have already said, there is no challenge to the testamentary capacity of the deceased. Nor is there any challenge to the due execution of the will. I have found both that there was capacity and that the will was duly executed. The court is therefore able to infer knowledge and approval. But as Peter Gibson LJ said in Fuller v Strum [2001] EWCA Civ 1879, [33],

“in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased.”

The important feature so far as our scenario above is concerned is that the testator must understand what he/she was doing and its effect so that the Will represents his/her testamentary intentions [The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr Wharton understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions](again, our

Very plainly the effect of the Will cannot accord with A’s testamentary intentions which were to ensure that C had 50% of the value of his house.

2. Secret Trust

The law of Secret Trusts in relation to Wills has recently been helpfully restated by HH Judge Davis-White QC in Mattingley v Bugeja [2021] EWHC 3353 (Ch), as per the following at paragraphs 21, and 22:

The law of secret trusts

21. There was common ground as to the basic elements required to establish a secret trust. As set out in Lewin on Trusts at paragraph 3-078:
“The primary donee will be subjected to a fully secret trust for the secondary donee where the secondary donee or his personal representative proves:

(1) an intention on the part of the testator to subject the primary donee to an obligation in favour of the secondary donee;
(2) communication of that intention to the primary donee during the testator’s lifetime; and
(3) acceptance of that obligation by the primary donee, either expressly or by implication.”

Further, a fully secret trust must comply with the three certainties applicable to express trusts, namely certainty of intention, certainty of subject matter and certainty of object. If, as it appears, B promised A that following A’s death, he would sell his property and gift the equivalent of 50% of the value of A’s house to C, so that A’s house didn’t need to be sold, there appears to be an intention on the part of the testator (A) to subject the primary donee (B) to an obligation in favour of the secondary donee (C). A Secret Trust could be found to exist given this, subject to its compliance with the “three certainties”.

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