Wednesday, 16 Nov 2016

Fraudulent calumny ……. or the drip, drip, drip of poison

Fraudulent calumny ……. or the drip, drip, drip of poison

An individual, if looking to challenge the validity of a Will, would usually consider one or a combination of the following as a legal basis for challenge:-

  • That the person making the Will (“the Testator”) lacked the required testamentary capacity to make the Will
  • That the Testator did not know and approve of the contents of the Will
  • That the requisite legal formalities were not observed when the Will was executed or
  • That the Testator made the Will as a result of undue influence.

Whilst all potential claims require proof, the last on the above list (undue influence) is notoriously difficult to prove.

Unlike with lifetime gifts where those in a position of trust who have assets transferred to them can face a presumption of undue influence which they need to rebut, with Wills a claimant would have to establish that the Will was made as a result of “coercion”.

What amounts to coercion will depend upon the facts of a particular case but it would be easier to establish coercion against a weak and infirm Testator than as against a strong-minded Testator and healthy Testator.

In addition to the grounds of challenge mentioned above there is the concept of “fraudulent calumny” which is often overlooked or considered sufficiently. This would usually be seen where one person, through dishonest behaviour, poisons the mind of the Testator against a person who would have a natural expectation of receiving an inheritance. This will usually be as a result of untrue aspersions being cast with the person making them either knowing they are false or not caring (i.e. being reckless) whether they are true or false.

If these types of statements can be proven and if it can be shown that they had a direct effect on the Testator’s decision about the exclusion of the potential beneficiary then this can invalidate the Will. Note however that there needs to be dishonesty or recklessness. If the person making the “false” statements actually believes that what they have told the Testator is true then there can be no fraudulent calumny.

As with all civil claims, the burden is to prove that this type of behaviour is more likely than not to have occurred with clear and cogent evidence which may well be circumstantial in nature. Note however that the allegation is one of fraud. Despite the usual civil burden of proof applying, the Courts are likely to want there to be clear evidence of a fraudulent statement having been made.

Is evidence of a gradual poisoning of the Testator’s affections towards the potential beneficiary sufficient to justify a challenge, especially if this process has taken place over a number of years? After all it will be a very rare case where you are able to prove that a clear and untrue statement was made to the Testator by someone who knew who it was untrue with the Testator then acting upon it when making their Will.

What should those who suspect that a relative’s mind is being poisoned against them do? Keep a diary I would suggest, with details of potential witnesses (especially those who are not interested in the outcome of any decision about the Testator’s Will) and a clear record of behaviours which give rise to concern. There’s also no harm in trying to talk to the Testator about any concerns especially if there is a suspicion that the Testator is being lied to by others.

If you require any legal expertise with any Private Client or Wills, Trust or Probate issues please contact Liam O’Neill.

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