This strange term is in fact a legal term used to describe the acts of a beneficiary to a will causing someone to change their will through deliberate deception or that the volition of the testator was overpowered by such beneficiary. There may have been a poisoning of the testator’s mind (NB: testator – the person making the will). Most usually it occurs in family circumstances where perhaps a parent is persuaded to change their will to favour one child rather than, as an example, both children of the parent. This is what happened in the legal case of Whittle v Whittle. Mr Whittle died less than one month after executing his will leaving his cars and contents of the garage to his son and the rest of his estate was left to his daughter and her partner. The son issued a claim to have the will set aside on the basis of fraudulent calumny and undue influence. The son claimed that his sister and her partner had made false allegations about him to their father – so much so that the father felt compelled to change his will excluding his son from the bulk of his estate. The father was frail and his deteriorating health condition led to his death one month following the signing of his will. The court ruled that the father’s will had been overborne by the actions and the son’s claim was successful. The deceased’s will was set aside and his estate passed in accordance with the rules of intestacy resulting in a larger share of the estate than that set out in his father’s will. The sister was ordered to pay the costs of the case. Although successful in this case fraudulent calumny is not easy to prove. If a beneficiary makes false representations but genuinely believes those representations to be true a claim in fraudulent calumny will not be successful.
In another recent 2017 case a will was found to be invalid on the basis that the deceased’s daughter had told lies about her sister to ensure that the sister did not receive any benefit under her mother’s will.
Undue influence occurs when the testator is threatened or forcibly persuaded or coerced to change their will. Again this is not easy to prove.
Jacqui de Silva
Jacqui is a solicitor at J C Solicitors Ltd jacqui@jcsolicitors.com
