The End of Fraudulent Calumny?

30 October 2022 8:15 am

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider whether in light of a recent decision, fraudulent calumny claims have become much more difficult to prove

The species of undue influence known as “fraudulent calumny”

We discussed this type of undue influence in our previous blog at:

Challenging wills using Fraudulent calumny – Will Claim Solicitors

What undue influence comprises is usually fairly obvious; influence or pressure which overcomes a persons true wishes in relation to his/her Will. The Courts found that one type of undue influence which didn’t involve such pressure was called “fraudulent calumny”. It involved the type of influence effectively procured by a campaign of “disinformation”; far more relevant and understood now one imagines given the often malign influence of social media.

The recent decision in Sharpe v Dyson and Ellis [2022] EWHC 2462 (Ch)

The link to this decision can be found as follows:
Sharpe v Dyson & Anor [2022] EWHC 2462 (Ch) (04 October 2022) (bailii.org)

It contains a useful summary of the law at paragraphs 363 to 367:

The first modern case discussing the plea was Re Edwards [2007] EWHC 1119. It was alleged that a son of the testatrix had made false allegations about his siblings. Undue influence and fraud were pleaded. The Court confirmed that there was a separate plea of fraud where A poisoned the mind of T against B by casting dishonest aspersions on his character. However, the person poisoning the mind of T had to know that the aspersions were false or not care whether they were. If he believed in the truth of what he said, then the will could not be set aside even if the allegations were objectively untrue. The question was not whether the disposition was fair, but whether the testator was a free agent.
The elements of the plea are as follows

(a) a false representation

(b) to the testator

(d) for the purpose of inducing the testator to alter his testamentary dispositions

(e) made knowing that it was untrue or recklessness as to its truth

(f) that the will was made only because of the fraudulent calumny

(see Kunicki v Hayward [2016] EWHC 3199).

In Bateman v Overy [2014] EWHC 432 the Court concluded that the evidence showed that the testator had formed his own unfavourable view of potential beneficiaries and decided to exclude them of his own free will.
In Re Boyes [2013] EWHC 4027 an allegation of fraudulent calumny failed where the Court found that a daughter T had always acted in the best interests of her father and that, if she had made allegations about the claimants, she had genuinely believed them. “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.” Therefore, a claimant must not only prove the alleged statements were made but that the representor knew them to be false or was reckless as to their falsity. It was of relevance in that case that, although the testator was a very ill man and dependent on T, there was little evidence he had been secluded from others and the evidence was that he was able to form his own views.
In Todd v Parsons [2019] EWHC 3366 it was suggested that the involvement of a solicitor could be effective to eliminate any causative connection between a false representation and the will made.

Effectively, where it can be proved that a testator has been misled by disinformation provided by one potential beneficiary against another with the purpose of inducing him to revoke a bequest to that person or not to provide for him at all, a finding of undue influence by fraudulent calumny can be made.

Not withstanding some “evidence” of disinformation – a finding can be made of a more independent cause

In Sharpe the disputed Will was made by a Solicitor and during private meetings with the testator. Given the involvement of an independent professional in the formation of the Will, the Court found at paragraph 371 as follows:

In relation to the issue of causation, the Defendants bore the heavy burden of establishing that any false representations of Mrs Sharpe were the only reason that Mr Dale made the 2019 Will. That was heavy burden given that he discussed his reasons with an independent professional.

The Court in Sharpe was satisfied that the causative effect of any dishonest or fraudulent aspersions against the Defendants was completely negated by the involvement of the Solicitor in the formation of the Will. Paragraph 427 confirms:

Moreover, whilst in my judgment there was no fraudulent calumny, even if the conduct alleged to have amounted to it had done so, on the facts of this case any causative effect would have been taken away by the interposition of Mrs Ridgway-Coates as Mr Dale’s solicitor in relation to the execution of his new will.

This suggests then that when a Solicitor is involved in the formation of the Will, a claim of fraudulent calumny is going to require evidence that the dishonest or fraudulent aspersions by one potential beneficiary against another, were maintained during the testators discussions with the Solicitor and his/her instructions to him/her.

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.

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