Inheritance Intrigues: Unmasking Undue Influence and Fraudulent Calumny

Cancer Research UK and Blandy & Blandy LLP have recently delivered a free online webinar focused on "Inheritance Intrigues: Unmasking Undue Influence and Fraudulent Calumny". To watch the recording of the Webinar click here.

In this webinar, Angela Bowman and Louise Low of Blandy & Blandy LLP took a closer look at two distinct types of challenges to Wills, namely validity claims based upon i) Undue Influence and ii) Fraudulent Calumny. 

The following blog is a summary of the salient points discussed at the webinar. 
 

What is undue influence?

Undue influence can occur in both lifetime gifts and in the creation of a Will. In respect of lifetime gifts, it arises where a relationship exists between two parties where there is "trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other" (Royal Bank of Scotland Plc v Etridge [2002]).
 
However, in the context of Wills, which the webinar and this blog will be focusing on, coercion is the important element to make out and is necessary to establish undue influence. In the case of Hall v Hall [1865-69] coercion was summarised as being “pressure…so exerted as to overpower the volition of the testator”. If this “pressure” causes the testator to succumb for the sake of a quiet life, if applied to an extent that overbears the testator’s free judgement, discretion or wishes, is enough to amount to coercion. Importantly, it is to be distinguished from mere persuasion.

Determining undue influence in Wills
 With regard to Wills, undue influences exists where a person exerts excessive pressure on a testator, causing the testator to make decisions that do not reflect their true intentions. Courts may set aside a Will, or specific provisions within a Will, if undue influence is proven. To determine whether undue influence occurred, various factors are considered:

• The physical and mental strength of the Testator. Edwards v Edwards [2007] established that the will of a weak and ill person may be more easily overborne than that of a “hale and hearty” one. 
• The length of time over which such pressure could have been, or was, placed: ‘A “drip drip” approach may be highly effective in sapping the will.’ Edwards v Edwards [2007].
• Whether a legal professional was involved in the Will making process. There needs to be evidence that the Testator received proper and adequate, independent advice in order to reduce the possibility of finding undue influence.
• Whether the Will is otherwise explicable.
• Whether there was a breakdown in the relationship between family members.
• Whether the Testator relied on the defendant and/or was vulnerable to their suggestions. In Coles v Reynolds [2020] it was stated that the involvement of a major beneficiary may invite heightened scrutiny. 
• How the Will under challenge compares to the Testator’s previous Wills or expressions of testamentary wishes.

Burden of Proof

The person contesting the Will bears the burden of proving undue influence. A plea of undue influence "ought never to be put forward unless the party who pleads it has reasonable grounds upon which to support it" (Spiers v English [1907]). The Court has held that claimants have to prove on the balance of probabilities, and on the basis of sufficiently cogent evidence, that the deceased’s will was overborne by coercion and that explanation had to stand in preference to any other explanation for the last Will.

Key Case Law 

In the case of Jones and Others v Jones [2023] it was successfully argued that the daughter exerted undue influence over her mother, the Testatrix. The Testatrix was survived by three of her four daughters. She made a Will in 2021 (her first ever Will) appointing the one daughter as executor and sole beneficiary.  The Court found that what had happened went beyond persuasion and was indeed undue influence. The Will was set aside, with the effect being that the Testatrix died intestate. Some reasons for the finding of undue influence were that the Testatrix was grieving loss of her late daughter, she was physically and mentally vulnerable and that she had been isolated from the rest of her family.

Conversely, an example of an unsuccessful claim is that of Henein v Laffa [2015]. The claim of undue influence was brought by the Testator’s husband. The Testator changed her Will 7 days before she died and left her entire estate to her son from a previous marriage. The solicitor who prepared the new Will was satisfied that there was no undue influence. The Judge upheld the last Will and refused the husband’s application for permission to appeal and ordered him to pay the son’s costs.  The Testator and her husband had been in a relationship for some 60 years and married for nearly 30 of those years. 

Fraudulent Calumny 

Claims against the validity of a Will can also be brought on the basis of fraudulent calumny. In Edwards v Edwards [2007] Lord Justice Lewison (as he is now) summarised the constituent elements of fraudulent calumny as follows:

• A poisons the Testator’s mind against B
• B would have been a natural beneficiary of the Testator’s bounty (i.e. a beneficiary under the Will)
• the aspersions cast by A relate to B’s character, and are dishonest 
• A knows the aspersions are false or is reckless as to their truth or falsity.

The above are the requisite elements to be proved, but two further tests have been discussed and are likely to be considered by the Court:  
(i) The purpose test = when A made false representations to the testator, A had the purpose of inducing the testator to disinherit B; and
(ii)The causation test = the relevant testamentary disposition was made only because of the fraudulent calumny.

Edwards v Edwards [2007] is an important case that sought to make out claims of both undue influence and fraudulent calumny. It involved a testatrix who had two surviving sons. She made a Will two months before her death, leaving her entire estate to only one of her sons. It was accepted that the testatrix had testamentary capacity; and that she knew and approved the contents of her Will. She had, however, made an earlier Will in 1990 on very different terms, which left her estate to her husband or if he predeceased her (as he did), the residue of her estate to her sons in equal shares. One son alleged that his mother had changed her Will because of undue influence exerted upon her by his brother; and because of lies which he had told his mother about John and his wife (stealing). The Court stated that the burden of proving fraudulent calumny rested on he brother making the claim and that fraudulent calumny must be proved by compelling evidence. There was witness evidence from family members as well as a doctor, and contemporaneous notes made whilst Mrs Edwards had been in hospital. The Judge found that Mrs Edwards was physically frail and vulnerable – she was in hospital at the time she signed her last Will.  The Judge found that she was greatly distressed by the death of one of her sons before her; and that this had impacted her emotional fragility. Fraudulent calumny was successfully established, in the circumstances. 

Dishonesty is a key factor in fraudulent calumny claims. The person making the aspersions against a potential beneficiary has to know that the aspersions are untrue, or at least be reckless as to their truth or falsity. Indeed, in Re Boyes, it was accepted that a sister had turned her father against her brothers. However, the sister truly believed what she had told her father was true and therefore there was no ground on which to have the Will set aside. 

How to help protect against these claims

A good, comprehensive Will file can be essential evidence if a claim is bought on either ground. When drafting a Will, it is good practice to bear in mind the elements of both types of claims as discussed above and record these in attendance notes. Was the testator particularly frail? Did anyone accompany them to the meeting? If so, was it a beneficiary? Were they overly domineering? Did they stay in the room for the entire meeting? Do you believe the testator was free of undue influence or fraudulent calumny? 

Concluding thoughts

Both undue influence and fraudulent calumny are difficult claims to make out. This is because they tend to occur behind closed doors, without witnesses present. However, we are seeing a change to this due to new technology. Although generally, videos and recordings obtained without parties’ knowledge will not be admissible in court, we have seen cases where the courts have accepted this type of evidence.  Courts carefully evaluate the surrounding circumstances, including the testator’s vulnerability and the behaviour of the influencer. Contesting a Will on these grounds involves gathering evidence of coercion, manipulation, falsehoods and inconsistencies in the testator’s behaviour or Will provisions.