Fraudulent calumny occurs where a beneficiary makes false representations to the person making their will about another person, the outcome of which is that the beneficiary making the representation inherits to a greater extent or the person whom the representations were about inherits to a lesser extent.
Fraudulent calumny’ occurs when a beneficiary of a will makes a false representation (or a series of false representations) about the character of another potential beneficiary of a will to the person making the will (a ‘testator’ or ‘testatrix’), and this results in:
Fraudulent calumny differs to undue influence because the person making the will does so of their own free will and volition but having had their perception of a potential beneficiary changed by another beneficiary. It is therefore a much subtler form of influence and has been referred to as the ‘drip, drip, drip of poison.’
The concept of fraudulent calumny was expressed clearly in Edwards v Edwards [2007]: “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”. In this case, the deceased left her entire estate to one of her two sons who had led his mother to believe that the other son had stolen from her. The will was found to be invalid because of this false representation.
It is important to state that if the person makes a false representation but genuinely believes it to be true, this is not fraudulent calumny. It is only if the person knows that the representation is false or if the person is reckless as to whether the representation is true or false that there can be fraudulent calumny. There can also be no other explanation for the disinheritance, ie it would not have happened anyway for other reasons.