Will validity: The effect of making false representations to a testator

The recent case of Sharpe v Dyson and another [2022] EWHC 2462 (Ch) concerned allegations that false representations had been made to a testator before he made his will.  This type of claim is known as "fraudulent calumny".  If proved, the will can be set aside and the testator's estate will be administered in accordance with the previous valid will or, in accordance with the intestacy rules.

A plea of fraudulent calumny will succeed where:

• A false representation is made to the testator about the character of an existing or potential beneficiary.
• The false representation is made for the purpose of inducing the beneficiary to alter their testamentary dispositions.
• The person making the representation knows that the representation is untrue or is reckless as to its truth.
• The will was made only because of the fraudulent calumny.

Decision

Judge Mark West, sitting in the Chancery Division of the High Court, accepted Mrs Sharpe's evidence and rejected the suggestion of fraudulent calumny. His judgment includes a detailed review of all the witness evidence heard in the case.  He found that Mr Dale had acted as a free agent when he made his last will and that he had formed his negative views of Mrs Dyson's sons' behaviour as a result of their conduct alone, without influence from Mrs Sharpe. By way of example, there was evidence before the Court that Mrs Dyson's sons had withdrawn funds from Mr Dale's bank account without his permission.

The Judge referred to an earlier fraudulent calumny case, Todd v Parsons [2019] EWHC 3366 (Ch) and found that even if Mrs Sharpe's conduct had amounted to fraudulent calumny, on the facts of the case any causative effect would have been taken away due to the involvement of Mr Dale's solicitor, who prepared and advised him on his will.

Conclusions

It will be interesting to see how the law of fraudulent calumny develops from here, given that there are few cases that come to trial on this issue alone. The recent developments in case law suggest that, even where there has been fraudulent calumny, the involvement of an independent solicitor will help a party defeat such a claim. 

Every case will turn on its facts, and a claim is more likely to succeed where the will is homemade or where the testator has received limited legal advice. Such cases often involve other issues, particularly when a will has been made at home with no notes or records kept which detail how it came into being, or what the testator's thoughts and feelings were at the relevant time.