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Fibs we tell our Parents

Posted on the 1st August 2022 by Noel McNicholas

All children tell tales about their siblings at one time or another. This generally fades as we pass into adulthood but sometimes this doesn’t happen and with profound effects.

In the case of Whittle v Whittle (2022) the court had to examine whether the words and conduct of one child against their only sibling was enough to influence the testamentary intentions of their elderly father. It would turn out to be an expensive exercise for one of the siblings. When it comes to telling fibs about the conduct of another to a person preparing their Will - which incites that person to change their Will - a claim for fraudulent calumny may rear its head.

So what is fraudulent calumny? It’s an allegation that person A told lies about person B in order to influence the Will of person C. In other words - but for those lies - person C would not have made their Will in those terms. It generally means a beneficiary of a Will making untrue and often scurrilous comments about the conduct and character of another potential beneficiary. Like a child telling fibs to their parent about one of their siblings (we’ve all been there).

The net effect will be to reduce their entitlement under the Will. But these type of claims are difficult to pursue successfully and the burden of proof high so it’s not to be undertaken lightly.

Whittle v Whittle

In 2016 a month or so before he died aged 92, Gerald Whittle made a Will appointing his daughter (Sonia) and her partner (Ray) to be the co-executors of his Will. This was Gerald’s only Will and had it not been made, his Estate would have been divided equally between his two children pursuant to an intestacy. Happily for Sonia and Ray, he left almost all his considerable assets to them. In contrast, his only son David was left his cars and the contents of his shed and garage (which he was obliged to clear). This came as a huge surprise to David who maintained a very good relationship with his father right up to the execution of the Will. But why had Gerald made such a dramatic change - hugely in favour of Sonia - in his testamentary wishes so close to death? The answer lay with Sonia.

After some considerable digging which included looking at the Will file, David discovered Sonia had told their father of some rather unsavoury alleged conduct by David:

  1. He had stolen money from his mother-in-law.
  2. His wife was a prostitute and that he was living off her immoral earnings.
  3. For good measure, he and his wife were labelled “psychopaths and criminals”.
  4. He was a violent man who assaulted women.
  5. He committed criminal damage.
  6. He went through Gerald’s home, whilst he was in hospital, and looked through his papers for bank account details and PIN numbers.
  7. He had committed criminal damage.

Taken together, is it perhaps unsurprising Gerald wanted to let David know how much he frowned upon this alleged conduct and did so by changing his Will. But how does one go about proving a fraudulent calumny claim to undermine a Will? The modern starting point in such claims is Edward v Edwards (2007) where the framework for fraudulent calumny was set out as follows:

  1. The defendant(s) poisoned the testator’s mind against the claimant.
  2. The claimant would be a natural beneficiary of the Will but for the defendant’s alleged actions.
  3. The defendant(s) either knew the statements made were false or did not care whether they were false

In light of David’s claim, how did Sonia and Ray defend themselves? Well, they didn’t really and certainly not in compliance with the orders of the court. They failed to comply with orders for disclosure and to exchange witness statements, effectively barring themselves from defending the claim in any material sense. Also, the court was not convinced by the merit of Sonia’s accusations. Though she admitted making negative comments about David, she believed in those statements. The court nevertheless found Gerald’s mind was poisoned by the false representations from Sonia, especially given it was clear father and son had a good relationship and were not estranged as Sonia had argued. Furthermore, what Sonia had told her father was simply false and therefore a claim of fraudulent calumny was proved, so removing the Will to allow an intestacy to take place which meant splitting the Estate with David (who for good measure was also put in charge of its administration). As the loser, Sonia (and Ray) would have found themselves on the end of a fairly hefty costs order too.

All in all, a catastrophic outcome for Sonia and Ray. The price of fibs proved to be very high and they did themselves no favours by failing to comply with court orders.

To contest a Will requires a proper and detailed analysis of all the relevant factors. At Thomas Flavell & Sons, we can advise you about any claim you are thinking of making or facing.