Challenging a will
Wills can be challenged or declared invalid for lots of reasons, for example, that the person making the will (known as the testator):
- lacked the mental capacity required to make the will (called 'testamentary capacity');
- did not know of, or approve, the contents of the will;
- was subject to undue influence when they made their will; and/or
- did not prepare or sign the will.
Undue influence involves someone coercing another person into making or changing their will. This could be by making direct or indirect threats, or placing pressure on the testator to leave their estate in a particular way e.g. an adult child suggesting that they will limit or stop contact with their vulnerable parent unless they leave them certain assets in their will.
A less well-known type of persuasion which is used to make someone change their will is fraudulent calumny, which is sometimes referred to as a 'poisoning of the mind'. This is where a beneficiary makes false representations (e.g. lies) to a testator, about the character or conduct of another potential beneficiary, to try to persuade the testator to change their will.
A key element of fraudulent calumny is that the person who is alleged to have poisoned the testator's mind must either:
- know that the statements they are making are false; or
- they do not care whether they are true or false.
Olive has two daughters, Rose and Lily. Olive's will currently leaves her estate to Rose and Lilly in equal shares. Rose tells Olive that Lilly has been:
- stealing from her and Rose;
- convicted of drink driving;
- going through Olive's personal papers; and
- carrying out criminal activities to obtain money.
Rose is aware that none of these statements are correct. Olive is so shocked and upset by Lilly's conduct that she changes her will to exclude Lilly, leaving her entire estate to Rose. Olive leaves a letter of wishes with her will explaining what Rose has said about her and why she has excluded Lilly from her will. Lilly challenges the validity of the will on the basis of Rose poisoning Olive's mind against her.
The above example may seem extreme, but there are real cases involving will validity where similar issues have occurred. For example, in Whittle v Whittle  EWHC 925 Ch, Gerald Whittle (G) died in 2016 aged 92 years. He had two children, Sonia and David.
G's will date November 2016 appointed Sonia and her partner, Ray as executors and the majority of G's estate were left to Sonia and Ray. David was due to receive G's cars and the contents of his shed and garage (provided that he cleared the shed and garage).
David challenged the validity of the will on the basis of fraudulent calumny and undue influence, alleging that Sonia had made false comments about him to G whilst G's will was being prepared. Some of these comments either alleged or implied that
- and his wife were "psychopaths and criminals";
- had stolen money from his mother-in-law;
- had committed criminal damage;
- was a violent man who had assaulted women; and
- had searched G's home whilst he was in hospital, looking for information about G's bank account and PIN number.
Sonia and Ray accepted that they had made "negative comments" about David, but claimed that they were true to the best of their knowledge. G's will was declared invalid on the grounds of fraudulent calumny and undue influence. The Court found that:
- G's mind was poisoned by false representations, which were objectively false, and that Ray and Sonia believed them to be false;
- there was no evidence to suggest that G had planned to make a will prior to Sonia and Ray's statements;
- Sonia had unduly influenced G; and
- Sonia had changed the locks on G's house (to exclude David) and had also changed his next of kin details with the hospital and G's care home to exclude David.
This meant that the Intestacy Rules would apply and David would receive an equal share of G's estate. David was also appointed as the administrator of the estate.
In another case, Edwards v Edwards  EWHC 1119 (Ch), Winifred Edwards (W) died in December 2001 and she had 3 sons, Reggie (who died before W), John and Terry.
W's will dated 10 October 2001 (the "2001 will") left W's estate to Terry, and John received nothing. However, W's earlier will dated 16 July 1990 ("the 1990 will") left her estate to her husband, Roy. If Roy died before her, W's grandson, Lee (John's son), would receive a legacy of £5,000 and the estate residue would be left to her three sons in equal shares.
John claimed that W changed her will because of undue influence exerted by Terry, and lies which Terry had told to W about John and his wife, Carol.
The Court pronounced against the 2001 will and in favour of the 1990 will.
Mr Justice Lewison commented:
"I conclude that Terry deliberately poisoned his mother's mind by making deliberately untruthful accusations against John and Carol with the aid of Mr Morris; and that the effect of his doing so was to cause her own discretion and judgment to be overborne. In changing her will she was simply doing as she was told. In my judgment that amounts to undue influence."
Undue Influence or Fraudulent Calumny?
Undue influence and fraudulent calumny may appear to be similar as both involve someone persuading a testator to change the contents of a will (and both may be referred to in cases involving will disputes). However, they are different because:
- undue influence – involves coercion, so a testator may not want to change their will or make certain provisions in their will, but they feel obliged to do so; and
- fraudulent calumny – usually involves the testator choosing to change or make their will in a certain way following false accusations or representations being made to them by another beneficiary.
If someone genuinely believes what they are saying is true, or they did not intend for a testator to change their will, it is unlikely to amount to fraudulent calumny.
It is important to mention that it is usual for family arguments to occur, where allegations may be made in the heat of the moment, or where someone says something about another person without firstly checking their facts. However, if the comments are made when a person knows they are incorrect (or they do not care if they are) for the purpose of persuading someone to change their will, the will may later be declared to be invalid.
Communicating by email, text, and social media may also mean that there will now be a permanent, written record of many family discussions which could later be referred to if there are any concerns about a will.
Originally published 27 July 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.