EWJ August 62 2025 web - Journal - Page 66
Fraudulent Calumny in Wills
and Probate: a Hidden Threat to
Testamentary Freedom
By Jhenna Mortimer - www.footanstey.com
The principle of testamentary freedom allows
individuals in England and Wales to dispose of their
estate as they wish upon death. However, this freedom
is not absolute and can be undermined by fraudulent
calumny a form of deceit that may render a will invalid. Though relatively rare in probate disputes,
fraudulent calumny is a serious allegation and a
complex legal doctrine with deep implications for the
integrity of wills.
fraud, and the evidence must be compelling,
especially since the central witness, the testator, is
deceased.
Courts look for:
l documentary evidence (letters, emails, texts);
l witness testimony about the testator's state of mind
and relationships; and
l patterns of behaviour that indicate undue
influence or manipulation.
What is fraudulent calumny?
Fraudulent calumny occurs when a person (usually a
beneficiary or close associate) deliberately poisons the
mind of a testator against another potential beneficiary by making false and malicious statements, knowing them to be untrue or being reckless as to their
truth. The aim is to induce the testator to exclude
that person from their will, thereby altering the
distribution of the estate through fraud.
A successful claim can result in:
l the impugned will being set aside;
l an earlier will being revived; and
l the estate being distributed under the intestacy
rules if no prior will exists.
Distinction from undue influence and capacity
challenges
While often confused with undue influence,
fraudulent calumny is distinct: undue influence involves coercion or pressure on the testator’s volition,
whereas fraudulent calumny attacks the testator’s understanding or perception of facts, rather than their
will or agency.
It is not enough that the testator held an unfavourable
opinion of the excluded party; what matters is how
that opinion was formed. If it was due to dishonest
manipulation, the will (or the relevant part of it) can be
declared invalid.
A claim of lack of testamentary capacity may also arise
in parallel but addresses different issues—namely, the
testator’s ability to make a will rather than the truthfulness of the information on which they relied.
Legal foundations and leading cases
The principle is rooted in equitable doctrines and has
been recognised in several key cases:
Re Edwards [2007] EWHC 1119 (Ch): Lewison J
outlined the elements needed to prove fraudulent
calumny, emphasising the requirement for intentional
deception and the need to show that the testator
would likely not have changed their will were it not
for the falsehood.
Practical implications and safeguards
To minimise the risk of fraudulent calumny, solicitors
should record contemporaneous notes of instructions
and reasons for excluding beneficiaries and testators
should be encouraged to write a detailed letter of
wishes.
Whittle v Whittle [2022] EWHC 925 (Ch): The court set
aside a will after finding that the deceased had been
manipulated into believing falsehoods about one child
by another. The judge stressed that a "deliberate
poisoning of the testator's mind" was needed.
Professional advice and independent witnesses can
support the will’s validity later.
For those contesting a will, legal advice is essential to
evaluate whether fraudulent calumny can be credibly
argued or whether other grounds may be more
appropriate.
If a claim for fraudulent calumny is to be successful,
the court must be satisfied, on the balance of probabilities, that:
1. A person made false representations about another.
2. Those statements were made dishonestly or
recklessly.
3. The statements were a material cause of the
testator’s decision to exclude the person from their
will.
Conclusion
Fraudulent calumny is a powerful but rarely successful ground for contesting a Will. Its seriousness lies in
the challenge it poses to the core value of testamentary freedom and the integrity of the probate system.
As courts continue to examine these claims with caution, the need for robust evidentiary support remains
critical in uncovering manipulative deceit that may
otherwise go unpunished.
Burden of proof and evidential challenges
Claims of fraudulent calumny are notoriously difficult
to prove. The burden lies on the person alleging the
EXPERT WITNESS JOURNAL
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AUGUST/SEPT 2025