The recent English case of re Boyes (Deceased) [2013] EWHC 4027 (Ch) confirms that a Will can be set aside for “fraudulent calumny”, where the testator is lied to about someone and changes his Will on the basis of those lies. Fraudulent calumny is a form of subtle undue influence, involving someone who “poisons the mind” of the will maker against a third party who would benefit from the will.

Law

In essence, to establish fraudulent calumny, the person alleged to have been poisoning the testator’s mind must either (i) know that the aspersions are false, or (ii) not care whether they are true or false. If a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.

Facts

Eric Arthur Boyes died in 2010, leaving a Will dated 19 November 2009 (the “2009 Will”) which the claimant sought to propound. The elderly claimant, Paddy, was the sister of the testator’s wife (who pre-deceased Mr Boyes), and stood to benefit from the 2009 Will.

The testator’s sons, Hugh and Alistair (who were the third and fourth defendants in the proceedings) put in issue both testamentary capacity and fraudulent calumny to set aside the 2009 Will. They purported that an earlier will prepared in 2003 (the “2003 Will”), confirmed by a codicil of 7 August 2009 (the “Codicil”), should be admitted to probate instead.

The main provisions in the Wills are as follows:

  • In the 2003 Will, the testator appointed all three of his children, Tricia (the first defendant), Hugh and Alistair, to be his executors, and gave the residue to those three children in equal shares. In the Codicil, the testator revoked the appointment of executors and trustees and appointed partners in Preston Redman LLP instead (the law firm which drafted the 2003 Will).
  • In the 2009 Will, which was prepared by a different law firm, the residue was given to Paddy as to two-thirds and to Tricia as to one-third. Tricia was appointed as the sole executor of Mr Boyes’ estate.
  • Accordingly, Tricia was in the same position under the 2003 and 2009 Wills, whereas Paddy only benefitted under the 2009 Will and Hugh and Alistair only benefitted under the 2003 Will.

Hugh and Alistair claimed that Tricia exerted undue influence over the testator by making the fraudulent calumnies to exclude them from benefit, which led to the 2009 Will.

Background

On 17 June 2009, the testator was admitted to hospital and subjected to a Mini Mental State Examination (which is used to screen for cognitive impairment). He was discharged, but was later re-admitted to hospital with hallucinations and was sedated. Hugh’s evidence was that during this period the testator was generally acting out of character.

On 12 July 2009, the testator said to Tricia that he intended to go into a care home and to sell his bungalow (where Hugh occasionally stayed). The brothers, however, queried the need for an immediate sale. Nevertheless, the testator signed an authority prepared by Tricia to proceed with selling the bungalow. By August 2009, the testator moved into the care home. A series of events unfolded over the following months leading up to the testator’s death, involving a failed attempt to arrange a mediation between the siblings (initiated by Tricia), and the testator requesting the two sons not to visit or to phone him having been infuriated by the dispute between his children.

In support of Hugh and Alastair’s claim, their counsel relied on four matters between the date of the Codicil and the 2009 Will to show that Tricia purportedly knew that some of the aspersions she made about Hugh and Alastair were false, or that she was reckless as to whether or not they were true or false:

  1. Tricia must have known that, contrary to what the testator expressed on one occasion that his two sons were hassling him for money, Hugh had stated clearly to Mr Boyes that none of the testator’s children needed money;  
  2. Tricia must have known that it was untrue that Hugh and Alastair left the bungalow so untidy that potential buyers of the property commented on the state;  
  3. Tricia must have been reckless as to whether it was true or not that a letter written by Hugh’s daughter to the testator was orchestrated by Hugh and his wife in order to re-establish contact with the testator; and  
  4. Tricia must have known that the allegation (made by the testator to another individual) that it was untrue the family were snooping around to get contact details from other members of the family.

Decision

The judge was not convinced by Hugh and Alastair’s allegations. Tricia and the testator’s actual belief and perception of the two sons took precedence over what Hugh and Alastair thought Tricia’s perception should be. Some of the witness evidence failed to support and even contradicted Hugh and Alastair’s assumptions regarding Tricia’s knowledge. Accordingly, Hugh and Alastair were unable to discharge the burden of proving that Tricia did anything other than carry out her duties to the testator, legal and moral. Even if she did, there was no fraud involved in any calumny of Hugh and Alastair as Tricia genuinely believed that their motives were suspect and that they were interfering with the testator’s wishes.

The judge also relied on the doctor’s report in reaching her decision, which particularly noted that:

  • In 2002, Mr Boyes signed an enduring power of attorney in favour of Tricia alone. He therefore presumably trusted her to act in his best interests if he lacked capacity for the management of his finances, and confirmed this intention in 2009.  
  • There is little evidence of seclusion of Mr Boyes by a relative on whom he was dependent for his day to day living and emotional needs, circumstances under which influence can be particularly significant. He still appeared to have been independently communicating with solicitors, his GP and care staff.  
  • In his consultations with solicitors, the doctor was struck by the coherence of Mr Boyes’ views, even when dealing with challenges by them as to his motives and capacity.

Key Points

  • A doctor’s opinion regarding the testator’s capacity is helpful for judges when reaching a view on the likelihood of being influenced by fraudulent calumnies.  
  • The judge is likely to place more weight on the testator and the purported influencer’s actual perception of the complainant in reaching a view on whether the aspersions are false or not.    
  • If a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.