Similar to undue influence, another type of fraud that can arise in a will dispute is fraudulent calumny. Fraudulent calumny is considered to be a serious allegation. Therefore, the burden of proof for relying on this ground of challenge to a will is high.
Fraudulent calumny occurs where a beneficiary of a will makes untrue comments to the testator (the person making the will) about the character of another potential beneficiary. The purpose of doing so would be to exclude or reduce that potential beneficiary’s entitlement under the will, to instead benefit the person making the false comments.
The comments must be made knowing that they are untrue, or with the person making them being reckless as to whether they are true or not. The case of Re Edwards in 2007 described fraudulent calumny as where “A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty [estate], by casting dishonest aspersions on his character”. If this is proven, then the disputed will should be set aside.
Although undue influence and fraudulent calumny are similar, there is a significant difference. Undue influence requires the testator to have been forcibly persuaded (coerced) by another into changing their will by their free will being overwhelmed. Fraudulent calumny is a more subtle type of influence. Ultimately the testator will have changed their will by their own free choice but as a result of a change of perception of a potential beneficiary due to the untrue comments made about them.
Often, where the will is prepared by a professional, the will file may evidence the reasons for the changes to the will. The reasons may ultimately be uncovered to be false accusations and suggest fraudulent calumny.
If you consider that a testator has changed their will under suspicious circumstances or are faced with defending a will challenge, please contact us to discuss your concerns in more detail.