A son who was disinherited by his father because of a false claim that he was a ‘psychopath’ and a ‘criminal’ has won his High Court case to declare the Will to be invalid. Gerald Whittle died at the age of 92 in December 2016, 3 weeks after making a will in which he left his estate, worth approximately £1m to his daughter Sonia and her husband Ray.

Gerald’s solicitors sent a trainee legal executive to his home to take his instructions for the will. During the meeting, Sonia told the legal executive that her brother David and his wife Julie were ‘psychopaths and criminals’ who had stolen large sums of money from Julie`s mother.

The judge said: ‘It is clear Sonia immediately launched into an assassination of the characters of both the claimant and of his wife.

‘Having rubbished her brother’s character, Sonia then left to take Gerald’s dog for a walk. It was against this immediate background that Gerald apparently proceeded to give instructions to Ms Spanner [the legal executive] for his will.’

Sonia 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.

The judge found that none of these claims were true. Sonia’s behaviour was described as ‘disgraceful’ and ‘appalling’.

The legal argument that was successfully pursued by David Whittle was ‘fraudulent calumny’. It is an allegation of fraud and as such it is an extremely serious allegation which requires strong evidence in support. The courts have made it clear that the burden of proof lies with the person bringing the claim; it’s not enough to prove that the facts of the case are consistent with the hypothesis; it has to be proved that the facts are inconsistent with any other hypothesis.

That was certainly a successful argument for David Whittle. Interestingly, the judge also found that Sonia had exerted ‘undue influence’ over her father.

There are a number of different arguments that can be put forward if the validity of a will is being challenged. Fraudulent calumny overlaps with one of them; ‘undue influence’. This argument requires evidence of coercion  – as opposed to merely pressure or persuasion – being brought to bear on the person making the will (the ‘testator’) for example, to exclude a potential beneficiary. It can be a difficult to prove because, by its nature, as a judge put it, “it goes on when no-one is looking”.

It’s likely that where these sorts of issues arise, the allegations of fraudulent calumny and undue influence will usually be run alongside, because of the overlap between them and to give the judge the opportunity to find one or the other allegation has been proved. It’s unusual for both allegations to be proved, as in the Whittle case.

The test for fraudulent calumny is:

1. A poisons the testator’s mind against B
2. B would have been a beneficiary under the Will
3. the aspersions cast by A:

• relate to B’s character, and
• are dishonest

4. A knows the aspersions are false or is reckless as to their truth or falsity

A real difficulty in cases like this is proving dishonesty. In the 2013 case of Re Boyes, it was accepted that a sister had turned her father against her brothers. However, because the sister truly believed what she had told her father was true there was no ground on which to have the will set aside.

It’s also important to prove that it was the ‘calumny’  which persuaded the testator to change their intentions.

Fraudulent calumny has been historically a relatively rare argument but it is starting to become more common  – possibly because there is a sense in which it is easier to prove than undue influence. The deliberate or reckless ‘trashing’ of a sibling’s reputation to a parent might not amount to coercion but could amount to fraudulent calumny if what is said is false, or the sibling in question is careless as to whether it is true or not.

Sarah Young – Director & Solicitor