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Lies! Damned Lies! And Wills (Part II)

What if a will’s provisions result from lies told to the testator when it was made? Partner John Melville-Smith examines a recent case.

It is as long ago as 2018 that I wrote Part 1 of this article which set out the law on fraudulent calumny, and I examine here a recent decision in this little-used area of law: Whittle v Whittle.

It may be little-used in proceedings – mainly for evidential reasons - but it is regularly raised by clients disputing wills in circumstances where someone has been left out and ‘their’ inheritance left, typically, to siblings.

Gerald Whittle died in December 2016, aged 92, leaving a will executed three weeks earlier. The will appointed his daughter, Sonia, and her partner, Ray, as the executors, left son, David, his cars and the contents of his shed and garage, subject to a clearance obligation on David “because we have become estranged" - and the residuary estate to Sonia and Ray.

David’s evidence – which the court accepted – was that the will was irrational; he had a good relationship with his father, visited him regularly and had supported him since his mother’s death. He provided detailed evidence of how his sister, Sonia, had procured a will in her favour. In a telephone conversation in mid-October, Sonia had called David a “thieving little b***ard” and a “pimp, living off immoral earnings of a prostitute”. The following day, when visiting his father at his temporary care home, he had overheard Sonia telling Gerald that David had stolen money from his mother-in-law, and that he was a violent man who assaulted women. Upon entering the room, Sonia had called him “a c**t and thieving f**king b***ard'. On a subsequent visit, David said that his father asked him whether he had hit a girl forty years earlier, whether he had been stealing by breaking into homes and whether his wife, Julie, was a prostitute. David described his father as appearing upset at the time.

The day after Gerald’s return home from his care home, he was attended by a trainee legal executive, Ms Spanner, to take his instructions for the preparation of a will. Sonia was present and – the court found – “took it on herself to remain with Ms Spanner and Gerald in order to 'explain the background to [her] father making a will'. … It is clear from the attendance note, however, that [Sonia] immediately launched into an assassination of the characters of both [David and Julie]. In the presence and in the hearing of Gerald as well of that of Ms Spanner, [Sonia] referred to [them] as 'psychopaths and criminals' who had 'done some terrible things to [Julie’s mother] prompting [her] '..to remove her daughter and David from her will' according to [Sonia]….[Sonia] further accused [David] of rootling through Gerald's paperwork, stealing from Gerald, of selling cars belonging to Gerald, of attempting to force their way into Gerald's property prompting a report to the police and causing the police to issue 'a harassment order' against [David]. 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 for his will. There is no record of a discussion with Gerald as to how he felt about what his daughter had just said and/or any recorded discussion as to its relevance to the making of Gerald's will.”

Sonia and Ray denied fraudulent calumny. Sonia admitted making negative comments about David to Ms Spanner, but claimed that the statements she made were truthful and she genuinely believed this to be the case.

The court found that “on all of the evidence presented to me, it is abundantly clear that the aspersions cast on the characters of both [David] and his wife, are not merely unproven by [Sonia], but, I find, are completely false…There is no evidence that [Sonia] held any reasoned belief in the truth of these lies. Indeed, [Sonia] must have known, at all times, the allegations to be false, harmful and hurtful particularly of David and his wife.”

The court then had to consider whether the falsehoods so tainted Gerald's mind and thoughts that he was compelled to exclude David from a more substantial share in his estate. In the context of Gerald’s age and medical condition, “the likely impact on Gerald of what he had heard from [Sonia] on 15 October, may be evidenced from the questions put by Gerald to David about a week later on 26 October 2016, when [David] was compelled to answer questions put to him by his father as to whether [he] had been violent and/or dishonest and/or lived off the immoral earnings of a prostitute… When added to the tirade unleashed by [Sonia] on Ms Spanner on 11 November 2016 – in the presence and hearing of Gerald and immediately prior to him even giving instructions on the terms of his will, I find that [Sonia] attempted and succeeded in falsely and unduly influencing Gerald to marginalise and/or minimise and/or exclude [David] from a substantial share in Gerald's estate.”

Conclusion

Gerald having no prior will, the intestacy provisions will result in David and Sonia receiving half of Gerald’s estate each – in the latter case, less David’s costs of the successful action to challenge the will.

Fraudulent calumny is usually more difficult to prove than it was in this case. Not everybody leaves such an extensive trail of evidence as Sonia did. Frequently, the only other direct witness to the untrue statements will be the deceased. 

What this case underlines, in as stark a way as possible, is that there must be “dishonest aspersions” cast upon the excluded beneficiary’s character together with a causal link between the comments and the testator’s instructions regarding his will.

To inquire about any of the above information or get in touch regarding any inheritance or will related disputes, please contact Partner John Melville-Smith on john.melville-smith@seddons.co.uk or 020 7725 8027

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