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2 older men whispering to each other perhaps one is poisoning the other's mind

Undue Influence or Fraudulent Calumny

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In our last blog (at least for now) about undue influence, we look at undue influence and fraudulent calumny

We’ve covered the issue of ‘undue influence’ in a couple of recent blogs, looking at the principles of undue influence as set out in the case of Edwards v Edwards, and then looking at undue influence in practice, looking at some cases where undue influence was – and where it wasn’t – proved. In this blog, we look at a related but different issue: “fraudulent calumny” and how this differs from undue influence.

What on earth is fraudulent calumny?

It’s an indication of how archaic the law can sometimes seem that there is a concept in will dispute law referred to as ‘fraudulent calumny’. Essentially, this refers to a situation where someone (person A) ‘poisons the mind’ of the person making the will (T)’s mind against someone else so that this someone else (B) is then left out of T’s will. This is not about A threatening or otherwise persuading T to make his or her will in a particular way. It is about A acting in a way that leads T to think less of B, to the extent that T then decides not to leave anything (or to leave less than he or she would otherwise have left) to B.

The difference between undue influence and fraudulent calumny is subtle, but it is important to understand. Undue influence is where A essentially coerces the person making the will to do so in a particular way that either benefits someone who would not otherwise have benefited (not necessarily the person doing the coercing) at the expense of B or leaves out B entirely. However, when undue influence is in play, A does not try and change T’s view of B – only to influence the contents of the will. Fraudulent calumny is about A changing T’s perception of B so that T appears to leave B out of the will of his or her own accord.

What is required to prove fraudulent calumny?

The case of Edwards v Edwards looked at what would be needed to prove fraudulent calumny.

A poisoning of the mind

As we mentioned earlier, rather than influencing the way a will is written, fraudulent calumny is about A influencing how T views B.

No other explanation

A vital element of fraudulent calumny is that there can be no other explanation for the way that the will has been written.

Knowledge of the lie

If you are looking to prove that A influenced T’s view of B, you must show that A knew what he was saying about B was untrue, or did not care if it was true or untrue. If A believed that what he was telling T about B was true, then even if those things were objectively untrue, this cannot alone be used to declare the will invalid.

A natural beneficiary

The other important factor when proving a fraudulent calumny is that ‘B’ must be ‘a natural beneficiary’ of T. This must be someone who would expect to benefit under T’s will – a child or near relative perhaps.

Fraudulent Calumny in action

Cases involving fraudulent calumny are even rarer than cases involving undue influence, but there are some that have reached the courts. Perhaps the key case is Edwards v Edwards, a case we’ve mentioned before. The facts were that a mother left her entire estate to one son (A), and nothing to her other son (B). B did not live close to his mother, but still did a lot for her and there was no reason that he should have been left out of the will. A lived with his mother and drank. It was established that A’s mother was scared of him, and also that A had told his mother that B had stolen money from her. The judge found that there was no other explanation for the way the will was written other than that A had poisoned her mind against B (and against B’s wife).

Not to be undertaken lightly

While some may consider fraudulent calumny to be an extreme form of undue influence, the key for anyone contemplating bringing a claim is to remember that they will need very strong evidence to prove that A made the allegations, cast the aspersions, fed the poison to T, and also that A knew or did not care that they were false allegations.  As T will not be around to give evidence about what had happened in the run up to making the will, anyone seeking to prove fraudulent calumny will need to think carefully about what evidence  they have – perhaps in the form of statements from other friends and family members close to T, letters or diaries.

If you think you may be in a situation where there has been fraudulent calumny or undue influence which has affected your inheritance, it’s vital to talk through the options you have to challenge the will concerned with a specialist. We are will dispute experts and offer a free claim assessment . We can handle most cases on a ‘no win no fee’ basis, making the whole process far more affordable than you might have thought.

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