1. Introduction
Huh? Say what? If the concept fraudulent calumny is unfamiliar to you that is not surprising. It is not one that has been used on this side of the Atlantic to my knowledge. But it has gained some currency in England and Wales. And so it is good to explore it a bit. The Oxford English Dictionary defines calumny as ‘malicious misrepresentation, slander; a false charge, a slanderous statement or report’. And thus, the phrase fraudulent calumny is used to describe the flagitious acts of a person who persuades a testator by using slander and other false statements that she should disinherit an heir (and make him an heir in a new will). In that way the person overpowers the will of the testator, and his acts can therefore be considered to be undue influence. But they can also be regarded as fraud. In either case, the person’s acts will invalidate the testamentary document. Those are the ways in which we have addressed the problem in Canada and in England as well. Clearly there is therefore an overlap between undue influence and fraud. As Lord Cranworth said in Boyse v Cranborough,[1] a will can be found invalid ‘either by coercion or by fraud’. In other words, the court can refuse probate of a will obtained by fraud even if you cannot prove coercion.
As mentioned above, in England and Wales courts have called such fraudulent acts to be fraudulent calumny. I am aware of only two cases that have used the term: Edwards v Edwards[2] and the recent decision, Whittle v Whittle.[3] This blog is a comment on the Whittle case, and it relies heavily on Edwards. However, the facts in Whittle are almost identical to those in Edwards, so it is not necessary to summarize them in this blog, except to note that the court in Edwards concluded that one son ‘deliberately poisoned his mother’s mind by making deliberately untruthful accusations against’ another son and his wife and did so with the help of a third party. Also, as distinct from Whittle in Edwards the court heard evidence in great detail from both sides.
2. Facts
Gerald Whittle died 7 December 2016 at the age of 92 while he was living in a care home and was suffering from leukaemia, diabetes, and other health problems. He was survived by two children, David and Sonia. He made his will on 15 November 2016. It appointed Sonia and her partner, Ray Spicer, executors. The will made a bequest to David but left the residuary estate equally to Sonia and Ray. The will contained a clause stating that the testator was disinheriting David (except for the bequest) ‘because we have become estranged’.
David disputed the will on the ground that it was procured by Sonia and Ray’s fraudulent calumny, undue influence, and lack of knowledge and approval on the part of the testator. David alleged that Sonia falsely represented to the testator that David had stolen from his mother-in-law, that he was a violent man who assaulted women. When a ‘Trainee Legal Executive’[4] came to the home to take instructions for the will from the testator, Sonia told her that David and his wife Julie were ‘psychopaths and criminals’ who had stolen a large amount of money from an account of Julie’s mother. She also told her that while the testator was in hospital, David went into his father’s home to find PIN numbers and bank account details. David also claimed that Sonia also falsely made other allegations of ‘criminal damage’ against him. David brought his claim in 2021.
In her response, Sonia admitted to making negative comments about David, but claimed that they were true and that she had a genuine belief in the truthfulness of her comments.
The court made an order giving directions that included enhanced disclosure from the defendants. By that point the defendants had defaulted in the payment of costs ordered earlier, so the court ordered that unless they paid the costs by a specified date the trial would proceed on the basis of written evidence only. The defendants failed to pay the costs and also failed to provide disclosure and to exchange statements with David. Hence, the case proceeded on the basis of written evidence.
At the hearing, the only evidence that was admitted was provided by David and July. The defendants did not attend the hearing.
3. The Evidence
David gave evidence to the effect that he had a good relationship with his father and visited him at least weekly. When the testator was admitted to hospital, it contacted David, because he was listed as the testator’s next of kin. Later, when his father was in the care home, David visited him and overheard Sonia telling his father of the allegations mentioned above and various others.
The attendance note made by Trainee Legal Executive did not indicate who contacted the law firm for which the Executive worked at the time for someone to come and take instructions for a will. But the court inferred that it was Sonia. Sonia was present for at least part of the time and reviled her brother to the Executive. The attendance note did not say that the testator was disinheriting David for any particular reason; nor did it say anything about the testator and David having become estranged. Hospital records made not long after the will described the testator as being ‘vague and unable to follow conversation or give answers to questions’.
4. Judgment
4.1 Fraudulent Calumny
I mean no disrespect when I state that the court accepted the law on this point as stated in the Edwards case by Lewison J and reproduced it in full:
- There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:
- i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
- ii) Whether undue influence has procured the execution of a will is therefore a question of fact;
iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;
vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A “drip drip” approach may be highly effective in sapping the will;
vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;
viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;
ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.
The court noted that if Sonia believed that what she said about David was the truth, the will cannot be set aside. However, it found that Sonia provided no evidence of the source and basis of her statements and thus failed to show that she believed her statements to be true. Indeed, Sonia must have known that her statements were false. The court went on to find that she overbore her father’s will and succeeded in falsely influencing him in order exclude David from the will or to minimize the amount to be left to him. Thus, the court found that David had made out the claim based on fraudulent calumny.
4.2 Undue Influence
The court went on to consider the contention of undue influence in case it was wrong on the fraudulent calumny point. It found that Sonia’s repeated falsehoods and her actions of limiting access to the testator, she overbore the testator’s will and therefore the will should be set aside on this ground as well.
4.3 Lack of Knowledge and Approval
The court did not find it necessary to deal with this issue.
5. Order
Consequently, the court pronounced against the will, granted letters of administration of the estate to David, and ordered that an account be taken of all the testator’s assets received by the defendants. The court also ordered that the defendants pay David his costs. And it ordered that the defendants should not recover any costs as executors from the estate because of their unreasonable conduct.
Note that the testator did not have a prior will, so when the court pronounced against the will in question, that meant that the testator died intestate, and his intestate heirs were his two children, David and Sonia.[5] The court does not address this point, but that would mean that they would each take half of the testator’s net estate. This may seem counterintuitive in light of Sonia’s despicable actions. However, those actions, although flagitious, were not criminal (she did not kill the testator). And thus there would have been no basis for declaring her right to inherit on her father’s intestacy to be forfeit. The law does not cause a forfeiture of rights already enjoyed when discreditable acts occur, even if they involve a crime.[6]
6. Analysis
In his text, John ES Poyser discusses many cases involving traditional undue influence cases and cases involving testamentary fraud Ultimately he decides to treat testamentary fraud as a subspecies of undue influence[7] He is in good company. Many cases, English and Canadian, regard testamentary fraud to be a kind of undue influence. And that is understandable. In both cases the testator’s will is overborne. But as the cases also make clear there are differences. Undue influence that does not involve fraud requires proof of coercion; undue influence by fraud does not. And while coercion and fraud may co-exist in a particular case, in others there may be either coercion or fraud. Thus, might we not treat the coercion and fraud cases as two separate categories? Poyser raises the question but does not join the debate.[8] And that’s fair. But it seems to me that we might reconsider the matter of classification because of the differences.
Poyser does make two very important points about testamentary fraud. The first is that there are different kinds of testamentary fraud. One is of the type discussed in this blog. Another is a false promise made by a person to care for the testator in return for being made a beneficiary. It is quite different from the typical testamentary fraud case because the promise may or may not be kept in the future. But a will cannot be set aside on the basis of such a promise (unless perhaps the promisor did not intend to fulfill it from the outset). If the promisor intends to keep the promise but later breaks it there may well be other remedies against the promisor but setting aside the will is not one of them.[9]
The second important point Poyser makes is that the fraud involved in testamentary fraud cases is common law fraud, not equitable fraud, because equity has no role to play in probate.[10]
A separate question is whether we need the label fraudulent calumny. Poyser refers briefly to Edwards in his text and mentions the label but does not comment on it. Is it useful? I think it may be. It has a certain ominous ring to it that highlights the gravity of the defendant’s acts. And that is not a bad thing.
—
[1] (1857), HL Cas 2, 10 ER 1192 at 1212.
[2] [2007] EWHC 119 (Ch).
[3] [2022] EWHC 925 (Ch),
[4] A ‘legal executive’ is a fee-earning qualified lawyer who undertakes work for other solicitors, usually in a specific legal area.
[5] The facts in Edwards were different. There was a prior will in that case and so when the court pronounced against the latest will that was obtained by fraudulent calumny, it pronounced in favour of the prior will. Under it the fraudulent calumniating brother was entitled to share with his victimized brother.
[6] See, e.g., Schobelt v Barber (1966), 60 DLR 2d 519 (Ont HC); Re Gore, 1971 CarswellOnt 246, para 8, [1972] 1 OR 550 (killer’s estate held jointly owned house on constructive trust on a tenancy in common as to half for itself and as to half for the estate of the deceased spouse). Similarly, a legatee who has defrauded the testator is not disentitled to a legacy if the defalcations were unrelated to the legacy: Bolianatz Estate v Simon, 2006 SKCA 16, leave to appeal refused (2006), 361 NR 390n (SCC); Coffey Estate v Coffey, 2014 BCSC 110.
[7] John ES Poyser, Capacity and Undue Influence, 2nd ed (Toronto: Thomson Reuters, 2019), p 355.
[8] Ibid., p 366.
[9] Ibid., pp 361-365.
[10]Ibid., p 366.
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Written by: Albert Oosterhoff
Posted on: February 16, 2023
Categories: Commentary, WEL Newsletter
1. Introduction
Huh? Say what? If the concept fraudulent calumny is unfamiliar to you that is not surprising. It is not one that has been used on this side of the Atlantic to my knowledge. But it has gained some currency in England and Wales. And so it is good to explore it a bit. The Oxford English Dictionary defines calumny as ‘malicious misrepresentation, slander; a false charge, a slanderous statement or report’. And thus, the phrase fraudulent calumny is used to describe the flagitious acts of a person who persuades a testator by using slander and other false statements that she should disinherit an heir (and make him an heir in a new will). In that way the person overpowers the will of the testator, and his acts can therefore be considered to be undue influence. But they can also be regarded as fraud. In either case, the person’s acts will invalidate the testamentary document. Those are the ways in which we have addressed the problem in Canada and in England as well. Clearly there is therefore an overlap between undue influence and fraud. As Lord Cranworth said in Boyse v Cranborough,[1] a will can be found invalid ‘either by coercion or by fraud’. In other words, the court can refuse probate of a will obtained by fraud even if you cannot prove coercion.
As mentioned above, in England and Wales courts have called such fraudulent acts to be fraudulent calumny. I am aware of only two cases that have used the term: Edwards v Edwards[2] and the recent decision, Whittle v Whittle.[3] This blog is a comment on the Whittle case, and it relies heavily on Edwards. However, the facts in Whittle are almost identical to those in Edwards, so it is not necessary to summarize them in this blog, except to note that the court in Edwards concluded that one son ‘deliberately poisoned his mother’s mind by making deliberately untruthful accusations against’ another son and his wife and did so with the help of a third party. Also, as distinct from Whittle in Edwards the court heard evidence in great detail from both sides.
2. Facts
Gerald Whittle died 7 December 2016 at the age of 92 while he was living in a care home and was suffering from leukaemia, diabetes, and other health problems. He was survived by two children, David and Sonia. He made his will on 15 November 2016. It appointed Sonia and her partner, Ray Spicer, executors. The will made a bequest to David but left the residuary estate equally to Sonia and Ray. The will contained a clause stating that the testator was disinheriting David (except for the bequest) ‘because we have become estranged’.
David disputed the will on the ground that it was procured by Sonia and Ray’s fraudulent calumny, undue influence, and lack of knowledge and approval on the part of the testator. David alleged that Sonia falsely represented to the testator that David had stolen from his mother-in-law, that he was a violent man who assaulted women. When a ‘Trainee Legal Executive’[4] came to the home to take instructions for the will from the testator, Sonia told her that David and his wife Julie were ‘psychopaths and criminals’ who had stolen a large amount of money from an account of Julie’s mother. She also told her that while the testator was in hospital, David went into his father’s home to find PIN numbers and bank account details. David also claimed that Sonia also falsely made other allegations of ‘criminal damage’ against him. David brought his claim in 2021.
In her response, Sonia admitted to making negative comments about David, but claimed that they were true and that she had a genuine belief in the truthfulness of her comments.
The court made an order giving directions that included enhanced disclosure from the defendants. By that point the defendants had defaulted in the payment of costs ordered earlier, so the court ordered that unless they paid the costs by a specified date the trial would proceed on the basis of written evidence only. The defendants failed to pay the costs and also failed to provide disclosure and to exchange statements with David. Hence, the case proceeded on the basis of written evidence.
At the hearing, the only evidence that was admitted was provided by David and July. The defendants did not attend the hearing.
3. The Evidence
David gave evidence to the effect that he had a good relationship with his father and visited him at least weekly. When the testator was admitted to hospital, it contacted David, because he was listed as the testator’s next of kin. Later, when his father was in the care home, David visited him and overheard Sonia telling his father of the allegations mentioned above and various others.
The attendance note made by Trainee Legal Executive did not indicate who contacted the law firm for which the Executive worked at the time for someone to come and take instructions for a will. But the court inferred that it was Sonia. Sonia was present for at least part of the time and reviled her brother to the Executive. The attendance note did not say that the testator was disinheriting David for any particular reason; nor did it say anything about the testator and David having become estranged. Hospital records made not long after the will described the testator as being ‘vague and unable to follow conversation or give answers to questions’.
4. Judgment
4.1 Fraudulent Calumny
I mean no disrespect when I state that the court accepted the law on this point as stated in the Edwards case by Lewison J and reproduced it in full:
iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;
vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A “drip drip” approach may be highly effective in sapping the will;
vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;
viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;
ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.
The court noted that if Sonia believed that what she said about David was the truth, the will cannot be set aside. However, it found that Sonia provided no evidence of the source and basis of her statements and thus failed to show that she believed her statements to be true. Indeed, Sonia must have known that her statements were false. The court went on to find that she overbore her father’s will and succeeded in falsely influencing him in order exclude David from the will or to minimize the amount to be left to him. Thus, the court found that David had made out the claim based on fraudulent calumny.
4.2 Undue Influence
The court went on to consider the contention of undue influence in case it was wrong on the fraudulent calumny point. It found that Sonia’s repeated falsehoods and her actions of limiting access to the testator, she overbore the testator’s will and therefore the will should be set aside on this ground as well.
4.3 Lack of Knowledge and Approval
The court did not find it necessary to deal with this issue.
5. Order
Consequently, the court pronounced against the will, granted letters of administration of the estate to David, and ordered that an account be taken of all the testator’s assets received by the defendants. The court also ordered that the defendants pay David his costs. And it ordered that the defendants should not recover any costs as executors from the estate because of their unreasonable conduct.
Note that the testator did not have a prior will, so when the court pronounced against the will in question, that meant that the testator died intestate, and his intestate heirs were his two children, David and Sonia.[5] The court does not address this point, but that would mean that they would each take half of the testator’s net estate. This may seem counterintuitive in light of Sonia’s despicable actions. However, those actions, although flagitious, were not criminal (she did not kill the testator). And thus there would have been no basis for declaring her right to inherit on her father’s intestacy to be forfeit. The law does not cause a forfeiture of rights already enjoyed when discreditable acts occur, even if they involve a crime.[6]
6. Analysis
In his text, John ES Poyser discusses many cases involving traditional undue influence cases and cases involving testamentary fraud Ultimately he decides to treat testamentary fraud as a subspecies of undue influence[7] He is in good company. Many cases, English and Canadian, regard testamentary fraud to be a kind of undue influence. And that is understandable. In both cases the testator’s will is overborne. But as the cases also make clear there are differences. Undue influence that does not involve fraud requires proof of coercion; undue influence by fraud does not. And while coercion and fraud may co-exist in a particular case, in others there may be either coercion or fraud. Thus, might we not treat the coercion and fraud cases as two separate categories? Poyser raises the question but does not join the debate.[8] And that’s fair. But it seems to me that we might reconsider the matter of classification because of the differences.
Poyser does make two very important points about testamentary fraud. The first is that there are different kinds of testamentary fraud. One is of the type discussed in this blog. Another is a false promise made by a person to care for the testator in return for being made a beneficiary. It is quite different from the typical testamentary fraud case because the promise may or may not be kept in the future. But a will cannot be set aside on the basis of such a promise (unless perhaps the promisor did not intend to fulfill it from the outset). If the promisor intends to keep the promise but later breaks it there may well be other remedies against the promisor but setting aside the will is not one of them.[9]
The second important point Poyser makes is that the fraud involved in testamentary fraud cases is common law fraud, not equitable fraud, because equity has no role to play in probate.[10]
A separate question is whether we need the label fraudulent calumny. Poyser refers briefly to Edwards in his text and mentions the label but does not comment on it. Is it useful? I think it may be. It has a certain ominous ring to it that highlights the gravity of the defendant’s acts. And that is not a bad thing.
—
[1] (1857), HL Cas 2, 10 ER 1192 at 1212.
[2] [2007] EWHC 119 (Ch).
[3] [2022] EWHC 925 (Ch),
[4] A ‘legal executive’ is a fee-earning qualified lawyer who undertakes work for other solicitors, usually in a specific legal area.
[5] The facts in Edwards were different. There was a prior will in that case and so when the court pronounced against the latest will that was obtained by fraudulent calumny, it pronounced in favour of the prior will. Under it the fraudulent calumniating brother was entitled to share with his victimized brother.
[6] See, e.g., Schobelt v Barber (1966), 60 DLR 2d 519 (Ont HC); Re Gore, 1971 CarswellOnt 246, para 8, [1972] 1 OR 550 (killer’s estate held jointly owned house on constructive trust on a tenancy in common as to half for itself and as to half for the estate of the deceased spouse). Similarly, a legatee who has defrauded the testator is not disentitled to a legacy if the defalcations were unrelated to the legacy: Bolianatz Estate v Simon, 2006 SKCA 16, leave to appeal refused (2006), 361 NR 390n (SCC); Coffey Estate v Coffey, 2014 BCSC 110.
[7] John ES Poyser, Capacity and Undue Influence, 2nd ed (Toronto: Thomson Reuters, 2019), p 355.
[8] Ibid., p 366.
[9] Ibid., pp 361-365.
[10]Ibid., p 366.
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