What is fraudulent calumny?
Fraudulent calumny is where one person makes statements to a testator (someone making a will) which they know are dishonest about another person who would usually be a beneficiary under the testator’s will. The testator then changes their will because of the statements made to them. Fraudulent calumny does not need to be the only reason why the person changed their will, only that the calumny was a reason for the changes in the will.
A finding of fraudulent calumny by a court will invalidate the will.
Ginger v Mickleburgh (2026)
Michael Gwilliam (‘Michael’) died in 2022 aged 79. His will left very little to his 4 daughters, instead leaving most of his estate to his sister, Joan and his companion, Sheila.
Michael had always claimed that he did not need a will because under the intestacy rules (where someone dies without making a will), his daughters would inherit everything and that is what he wanted.
In 2014, Michael began to suffer psychotic delusions, believing that his neighbours were threatening him and trying to get him to sell his farm. Michael was detained under the Mental Health Act 1983, a process commonly called ‘sectioning’.
Once Michael was back home his delusions shifted, and he began to believe that his daughters were trying to have him sectioned again in order to gain control of his assets. Joan and Sheila reinforced these delusions and arranged for a firm of solicitors to help him make a will.
After Michael died, his daughters challenged the will on two grounds:
- Michael lacked the mental capacity to make a will
- Fraudulent calumny.
The court set the will aside for lack of capacity but rejected the fraudulent calumny claim because Joan and Sheila believed the statements they made to Michael about his daughters and therefore the statements were not dishonest
Lack of capacity was established due to Michael’s delusions at the time of making the will. The will was drafted by an experienced paralegal, but a full capacity test was not carried out, despite the paralegal knowing that Michael had been sectioned. The paralegal conducted a pro-forma capacity checklist and filed a short attendance note following the meeting.
The court found that the paralegal’s record was insufficient to confirm that Michael had capacity.
It was also of note that on both occasions when the paralegal met with Michael, Joan and Sheila were either in the room, or nearby. It was therefore arguable that Michael did not benefit from full, independent legal advice.
Lessons to be learned from the case
The case highlights both the difficulty in proving fraudulent calumny and the importance of proper assessment for capacity.
It should not be assumed that a person lacks capacity to make a will just because they are old or infirm. However, challenges to wills on the basis that the testator lacked capacity are more common for elderly testators.
- A capacity test should be carried out for every testator, every time
- Obtaining an evaluation from a GP or medical professional to confirm the individual’s capacity to make a will is advisable (known as “the Golden Rule”).
- As a further safeguard, the GP can also be a witness to the will.
- Comprehensive records of discussions between a solicitor and the testator should always be kept. This will help establish what actually happened in the event of a challenge years later.
- It is also crucial to ensure that the testator is interviewed alone to confirm their decisions are their own and are not being influenced by anyone else. This can help prevent any allegations of fraudulent calumny and/or undue influence.
If you would like to contact our contentious probate team please email Emma Walker: emma.walker@daviesandpartners.com
