Fraudulent calumny is its own ground for challenging a will, and one of the least well known. It applies where someone lies to a will-maker about another person's character to turn them against that person, and the will that follows reflects those lies rather than what the will-maker really thought.
What is fraudulent calumny?
The classic statement comes from Edwards v Edwards (2007). The idea is that if one person poisons the mind of the will-maker against someone who would otherwise have inherited, by casting dishonest aspersions on their character, the will can be set aside.
What matters is the state of mind of the person telling the lies. They have to either know the aspersions are false, or not care whether they are true or false. Recklessness counts. An honest mistake does not.
What has to be proved?
Pulling the case law together, a challenger has to show all of this:
- A false statement. Something said about a person that was not true.
- Made to the will-maker. The lie has to reach the person making the will.
- About the character of a possible beneficiary. This is about blackening someone's name, not lies in general.
- Meant to change the will. The point of saying it was to affect what the will-maker did.
- Said knowingly or recklessly. They knew it was false, or did not care.
- Which caused the terms of the will. The will has to actually reflect the poisoned view.
Why does honest belief defeat the claim?
Because this is about dishonesty, not about getting things wrong. It is the most important point for anyone thinking about a claim. The court put it plainly in Whittle v Whittle (2022). If the person genuinely believed what they said about the beneficiary was true, then whether it was actually true stops mattering. The will is not set aside on that basis.
So a sister who sincerely but wrongly believes her brother stole from their mother, and says so, has not committed fraudulent calumny. A sister who invents the theft has.
How is it different from undue influence?
They often get run together, and the same facts can support both, but they work differently.
- Undue influence works by coercion. The will-maker's own judgment is overpowered by pressure. They give in.
- Fraudulent calumny works by deception. The will-maker's judgment is fine. They decide freely, but on the basis of false information about someone. They are convinced, not coerced.
In practice fraudulent calumny can be the easier of the two to run. If there is written evidence that the accusations were made, and evidence they were false, you do not have to show anyone was worn down.
What about costs?
Serious for the losing side. In Whittle the defendants were ordered to pay the claimant's costs, and were also barred from taking their own costs as executors out of the estate because of how they had behaved.
That cuts both ways. Fraudulent calumny is an accusation of dishonesty, and a claimant who makes it and fails is exposed on costs. It is not something to plead on a hunch.
What should you do about it?
If you are making a will and someone has told you things about a family member that changed your mind, it is worth checking them yourself before you act. If you put a reason in your will, make sure it is accurate. In Whittle the will said there had been an estrangement, and there turned out to be no evidence of one at all, which helped the challenge rather than the will. See protecting your will from a challenge.
If you think this happened, what you need is documents: the will file, anything written or recorded showing the accusations were made, and material disproving them. See how to challenge a will, and the overview of legal challenges to wills for how this compares with the other grounds. The Dalton will dispute is another case built on false accusations.
This article is for general information and is not legal advice. Alleging fraudulent calumny means alleging dishonesty, and it carries real costs risk. If you think a will was made because someone lied about you or a relative, please get in touch for advice on your own situation.
Sources
Common questions
What is fraudulent calumny?
It is a ground for setting aside a will where someone has poisoned the mind of the will-maker against a person who would otherwise have inherited, by casting dishonest aspersions on their character. What matters is the state of mind of the person telling the lies. They have to either know the aspersions are false, or not care whether they are true or false.
What is the difference between fraudulent calumny and undue influence?
Undue influence works by coercion. The free choice of the will-maker is overpowered by pressure. Fraudulent calumny works by deception. The will-maker decides freely, but based on lies about someone else. The same facts often support both, and they are frequently run together.
Does it matter if the person genuinely believed what they said?
Yes, and it usually decides the case. If the person honestly believed the accusations were true, the claim fails even if the accusations turn out to be false. This is about dishonesty rather than about getting things wrong, so a sincere but mistaken accusation is not fraudulent calumny.
Oliver Asha
Solicitor · TEP · Founder of Make a Will
Oliver is a Solicitor (SRA number 372772) and a Trust and Estate Practitioner (TEP). He qualified in 2006 and he is founder at Make a Will, Make a Will Online, Digilegal Trustees and Capacity Vault. It is his mission to bring proper, solicitor-checked wills within reach of every family. He personally drafts and oversees the review of many of the guides on this site.
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Further Reading
- Stop a Probate Application - GOV.UK How to enter a caveat if you want to challenge a will
- Find a Solicitor - The Law Society Search for a solicitor who specialises in contentious probate
- Inheritance (Provision for Family and Dependants) Act 1975 - legislation.gov.uk The Act that lets family and dependants claim reasonable provision
- Wills Act 1837, section 9 - legislation.gov.uk The signing and witnessing rules a will must satisfy