How to ensure a will is valid and avoid disputes – Part 4
This series of articles looks at whether or not a will is valid, and how getting a reputable solicitor or will writer to draft your will later pay for itself. In part one we looked at testamentary capacity; in part two, whether the testator knows and approves of the contents of the will; and in part three we looked at undue influence. We now turn to its cousin, fraudulent calumny.
Fraudulent calumny- aka poison aka dissing the competition
As I detailed in part 3, getting a will declared invalid due to undue influence or fraudulent calumny is incredibly difficult due to the need to assert, plead and prove the position, with convincing evidence.
Fraudulent calumny is where a representor (or calumnor) made a false representation to the testator about a person, usually a potential or actual beneficiary, for the purpose of inducing the testator to alter his will or will making intentions. This process has been described as ‘poisoning the mind’ of the testator, promoting the undesirability of a potential and competing beneficiary.
There must be convincing evidence that the representor made the representation knowing it to be untrue, or otherwise being reckless as to its truth. It must also be shown that the will was made only because of that representation.
By way of an example, Edith, a gentle soul of 89 years, was going to leave part of her estate to Johnny, but she changed her mind after George, who had a forceful personality, told her that Johnny had been convicted of drug smuggling. Separately however, George had bragged to Rita that he said this knowing it to be false because he knew that, if Edith accepted this statement, the part of Edith’s estate that would have been left to Johnny would be left to him instead. Rita gave evidence to this effect, as did Lois and Peter, who had overheard the conversation. As is the case with undue influence (see part three), the facts in asserting the fraudulent calumny of Johnny by George were not only consistent with fraudulent calumny but were also inconsistent with any other explanation for Edith writing Johnny out of the will. George suggested in court that Johnny had simply been left out of the will because he stopped visiting Edith when she was alive but this was not upheld as Johnny demonstrated this was not the case. On Johnny’s application to the court Edith’s will was found to be invalid as a result of George’s fraudulent calumny, made at Johnny’s expense.
If you want to make a will, please call GA’s wills, trusts and probate department on 01752 203500.
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