Wills for Blended Families

Fraudulent Calumny in the limelight - Sharpe v Dyson and Anor [2022] EWHC 2462 (Ch)

As our loved ones approach old age, most people seek to spend more time with them conscious that now is the time to make memories and perhaps also that this is when their elderly relatives or friends need them the most. However, there are those that will take advantage of this potentially vulnerable time for personal gain. The phrase “fraudulent calumny” may sound like an archaic term for a sophisticated legal concept, however, it is commonly seen in legal practice today and often witnessed first-hand by clients without them realising it.

The term describes the situation where a Will maker’s (testator’s) mind is poisoned by someone against another person who would have otherwise benefitted under the testator’s Will. A classic example is where a sibling tells an elderly parent that their brother or sister has been stealing from them (or another such lie) in order that the parent decides to disinherit the said brother or sister who would otherwise have been left something in their Will. Importantly, it does not need to be one particular comment which incriminates the accused, it can be a “drip” approach over a number of years that wears the testator down. Often clients see this kind of behaviour happening but are not armed with the knowledge that this is a recognised legal concept that ultimately, if proved, can reverse the changes to the Will made because of the aspersions.

The recent case of Sharpe v Dyson and Anor showcased how fraudulent calumny can be used in an attempt by disgruntled disinherited beneficiaries to reclaim their inheritance. The case centred around two brothers whose stepfather decided to remove them from his Will after receiving threatening calls, texts and potentially other abusive behaviour from them. Their mother had predeceased their stepfather and left her entire estate to him. The two sons expected that on their stepfather’s death, the remaining estate would pass to them as they were their mother’s only children and their stepfather was estranged from his own children. After the behaviour exhibited by his stepsons, the stepfather decided to remove them from his will and leave his estate to his sister-in-law who had been helping to care for him since his wife died. The brothers claimed that the sister-in-law had become very close with their stepfather during an illness prior to his death in order to poison his mind against the stepsons and they denied any abusive behaviour being the reason for him changing his Will. The court found that the sister-in-law had been helping to care for the brothers’ stepfather out of kindness and not for any personal gain. The claim for fraudulent calumny failed.

The case sets out the criteria for fraudulent calumny and for a claim to succeed a) there must be a false representation; b) to the testator; c) about the character of the existing or potential beneficiary; d) for the purpose of inducing the testator to alter his or her testamentary dispositions; e) made knowing that it was untrue or recklessness as to its truth; and f) that the Will was made only because of the fraudulent calumny.

Crucially, the person who made the representation(s) must have believed them to be false. If the person believed them to be true, fraudulent calumny will fail. Equally, if false representations had been made but there was a more compelling reason as to why the Will had been changed (such as a change in family circumstances) then fraudulent calumny will not be made out.

The brothers in the above case pleaded fraudulent calumny because they were named as beneficiaries in an earlier Will and knew that if the claim was successful the court would have directed for the old Will to take effect rather than the new one which disinherited them.

Those with difficult family dynamics may at this point wonder how they go about changing their Will if they have chosen not to benefit beneficiaries that were otherwise expecting to benefit without leaving themselves open to a claim of fraudulent calumny. It is important to note that a person can leave their estate to who they wish (minors, or those who were financially dependent on the deceased, may have a claim in certain cases) and so it is not problematic in itself to change a Will or leave out family members who may be expecting something.

The most significant point to note from the Sharpe v Dyson and Anor case and indeed previous fraudulent calumny cases is that much weight was given to the fact that the stepfather had taken legal advice when changing his Will. This was not a complicated or expensive process; the stepfather merely arranged for a solicitor to come to his house to take his instructions and the solicitor then drafted the new Will, which was subsequently signed in the presence of the solicitor. No specific instructions were given to protect against fraudulent calumny, the mere act of the solicitor taking instructions as to why the Will was being changed and recording contemporaneous notes were enough to negate a claim. The court noted that even if fraudulent calumny had taken place in this case it would not have been enough for the court to revoke the current Will because of the reasons recorded by the solicitor.

The case is a reminder that a bespoke and well-thought out Will is extremely important and will save costs in the long run. The conversations you will have with your solicitor setting out the reasoning behind the terms of your Will and the decisions you have made will be invaluable in particular where they are challenges to the Will.

Blended families pose a unique challenge and issues relating to succession will have to be carefully considered in a delicate and sensitive manner. In such families, the more common “leave everything to each other then to the children” approach will more than likely be inappropriate. Leaving everything to each other and trusting that the surviving spouse will not change the terms of his or her Will or make lifetime gifts that would frustrate the spirit of the Wills could be misconceived.

Every family situation is different and the circumstances have to be considered in the round. It is however possible to set out your wishes in a tailor made Will to carefully provide for the surviving spouse without potentially compromising the inheritance for your biological children. One cannot help but wonder if the mother of the two brothers ever envisaged them being disinherited (rightly or wrongly) by her husband after her death.

The Private Client Team at Rollits are experienced in dealing with these delicate matters in a sensitive and confidential way to strike a balance and minimise the risk of expensive and damaging family disputes.