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CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – UNDUE INFLUENCE BY DISHONEST ASPERSIONS

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider how undue influence by dishonest aspersions can invalidate a Will

How undue influence by dishonest aspersions to a testator can lead to an invalid Will

At a guess the bulk of our enquiries relate to challenges against the legal validity of a Will on the basis of undue influence and usually by the disappointed beneficiary. The recent case of Whittle v Whittle [2022] EWHC 925 (Ch), is a rare example of a successful challenge where the primary case was that the testator was unduly influenced, possibly because theDefendant(s) were barred from running a defence at the trial. The entire case can be found at:

https://www.bailii.org/ew/cases/EWHC/Ch/2022/925.html

It is often rather difficult to run a Will contest or Will dispute claim solely on the basis of undue influence simply because it is so difficult to prove as the nature of such malign influence is that it is hidden from plain sight and very difficult to prove. Invariably, we would look for another basis such as capacity (lack of) which is much easier to prove if, for example, the testator whose Will is disputed, was being treated for a condition such as dementia/Alzheimer’s disease and/or where the testator’s cognition is being actively measured and recorded. We have raised all of the above in a previous blog at:
https://www.willclaim.com/trouble-undue-influence/

Why did Whittle v Whittle result in a successful challenge to the legal validity of the Will?

There are two main types of undue influence:

  1. Pressure which overcomes the free will of the testator;
  2. “Fraudulent Calumny” where the testator’s mind is poisoned in relation to a potential beneficiary.

In Key v Key [2010] EWHC 408 (Ch) – see

https://www.bailii.org/ew/cases/EWHC/Ch/2010/408.html

Mr Justice Briggs found (at paragraph 96) that:
“that affective disorder such as depression, including that caused by bereavement, is more likely to affect powers of decision-making than comprehension. A person in that condition may have the capacity to understand what his property is, and even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit”

Age and moderate ill health then can weaken the testator’s resolve. In Whittle District Judge Woodburn quoting from Edwards v Edwards [2007] WTLR 1387 highlighted that if a testator is weak and ill, then the amount of pressure required to overpower his free will is likely to be reduced:

“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”

Such pressure though as mentioned is more likely than not to occur behind closed doors and be difficult to prove.

The second type of undue influence known as “Fraudulent Calumny” is more likely to be in the public domain and/or open and reported by its nature where false aspersions are being made to cause a testator to leave less or nothing at all to a potential beneficiary. This was the situation on Whittle and may have lead to the Defendants losing their right to defend, simply because they had no answer to the claims raised against them (they failed to provide disclosure and exchange factual evidence and thus were barred from maintaining a defence). In particular, the First Defendant explained the background (to include the dishonest aspersions) to the Solicitors who were engaged to draw up the Will and recorded who recorded them in their attendance note. The aspersions against the Claimant who was the potential beneficiary (and his wife) were so extreme they were easy to disprove. The District Judge found them to be false.

The best defence(s) to “Fraudulent Calumny”

There are two potential defences:

  1. the aspersions were not the cause of the testator’s change of Will;
  2. the person making the aspersions believed them to be true.
  1. above is usually a question of fact. In Whittle the District Judge found the testator had been
    influenced because he had questioned the Claimant about them.

The second point (2. above) is much more challenging as it is often quite difficult to determine the mindset of a particular person in cases of this nature where family dynamics are complex and historical. Inevitably it creates a large element of risk. In Whittle the District Judge found that the First Defendant must have known her aspersions were untrue. It may have become a more challenging issue if she had given live evidence.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/nowin-no-fee/.

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