Whittle v Whittle [2022] EWHC 925 (Ch)

David Whittle successfully challenged his father Gerald's will, which favoured his sister and her partner. The High Court found the sister had poisoned their father's mind with false allegations, establishing fraudulent calumny and undue influence, and pronounced against the will.

Facts

Gerald Whittle died on 7 December 2016 aged 92, having executed a will on 15 November 2016. The will left his residuary estate jointly to his daughter, Sonia Whittle (D1), and her partner, Ray Spicer (D2), as executors and beneficiaries. His son, David Whittle (C), received only the cars Gerald owned together with the contents of the sheds and garages at Gerald’s home, subject to C clearing those areas. Clause 6 of the will recited that Gerald and C had ‘become estranged’.

Gerald’s health had deteriorated from August 2016 onwards. He suffered from myeloid leukaemia, diabetes, hypothyroidism, and chronic kidney disease. He had multiple hospital admissions and a period of residence at The Close Care Home between August and 10 November 2016.

C’s evidence was that he had enjoyed a good relationship with his father, visiting at least weekly since his mother’s death in 2005, and had been named as Gerald’s next of kin. On 14 October 2016, D1 abused C by telephone. On 15 October 2016, C overheard D1 telling Gerald that C had stolen money from his mother-in-law and was a violent man who assaulted women. On 26 October 2016, Gerald questioned C about these allegations, which C denied.

On 11 November 2016, the day after Gerald’s discharge from the care home, Juliette Spanner, a trainee legal executive, attended Gerald’s home to take will instructions. D1 was present and, in Gerald’s hearing, described C and his wife as ‘psychopaths and criminals’ who had done terrible things to Julie Whittle’s mother, and accused C of theft, rummaging through Gerald’s papers, and harassment. D1 then left. Gerald gave instructions leading to the disputed will.

A letter dated 3 December 2016, purportedly from Gerald to the solicitors, was in fact written and signed by D1, as she admitted. Gerald died on 7 December 2016.

Procedural Background

C issued proceedings in April 2020 challenging the will on grounds of fraudulent calumny, undue influence, and want of knowledge and approval. The Defendants failed to comply with directions, including an ‘unless order’ for payment of costs. They were debarred from defending by order of District Judge CJ Taylor on 25 October 2021, and their application for relief from sanctions was dismissed on 18 February 2022. The trial accordingly proceeded on the written evidence of the Claimant only.

Issues

The court had to determine whether the Claimant had proven, on the balance of probabilities, that the will dated 15 November 2016 was procured by (i) fraudulent calumny, (ii) undue influence exerted by D1 on Gerald, or (iii) in circumstances where Gerald lacked knowledge and approval of its contents. Counsel for C submitted that only one of these grounds needed to be established.

Arguments

Claimant’s case

C argued that the gift left to him was irrational and valueless, with the cost of clearing the garage and sheds outweighing the value of any vehicles. C relied on evidence demonstrating his good relationship with his father, his security-vetted professional background, and a Thames Valley Police letter showing insufficient evidence to prosecute him following D1’s allegations of criminal damage. C’s wife Julie denied the allegations of prostitution and criminality made against her. Counsel, Mr Auld, relied on Edwards v Edwards [2007] WTLR 1387 and submitted that D1’s repeated falsehoods had overborne Gerald’s will during a period of physical deterioration.

Defendants’ case

Having been debarred from defending, the Defendants did not attend the hearing. Their pleaded defence had denied fraudulent calumny, with D1 admitting to ‘negative comments’ on 11 November 2016 but claiming genuine belief in their truth. The Defendants provided no disclosure or witness evidence to support their belief in the truth of the assertions.

Judgment

District Judge Woodburn set out the applicable law by reference to the summary by Lewison J in Edwards v Edwards, which he reproduced at length. That passage identifies, amongst other matters, that:

There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside

The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false.

Fraudulent calumny

The judge found that the aspersions cast by D1 on C and his wife were not merely unproven but completely false. D1 had provided no evidence of the source or basis for her statements and, by reference to Re Boyes [2013] EWHC 4027 (Ch), had failed to place herself in any position to demonstrate a belief in their truth. The judge held that D1 must have known the allegations to be false, harmful, and hurtful.

Addressing whether the falsehoods had tainted Gerald’s mind, the judge emphasised Gerald’s age, frailty, deteriorating health, and dependence. Gerald’s questioning of C on 26 October 2016 about the allegations demonstrated the impact of D1’s statements. D1’s tirade to Ms Spanner on 11 November 2016, immediately preceding Gerald’s instructions, was found to have succeeded in falsely and unduly influencing Gerald to marginalise C. The judge noted the absence of a prior will, meaning intestacy would have benefited C more substantially, and found the prime purpose of the will was to minimise C’s share whilst ostensibly justifying that minimisation through the reference to ‘estrangement’, a claim unsupported by any evidence.

Undue influence

In case his findings on fraudulent calumny were wrong, the judge also addressed undue influence. He found that D1 had changed the locks at Gerald’s home, altered the next-of-kin designation at hospitals and the care home, and repeatedly peddled falsehoods. The judge inferred that the appointment with Ms Spanner had likely been arranged by or on behalf of D1, given the absence of any recorded surprise at her attendance. Gerald’s recital of ‘estrangement’ was wholly unevidenced and contradicted by his earlier nomination of C as next of kin in September 2016. The judge concluded that D1’s strident, forceful, and repeated falsehoods, during a period of physical decline, amounted to undue influence.

Outcome

The judge pronounced against the will of 15 November 2016, granted Letters of Administration to the Claimant, and ordered an account of all assets received by D1 and D2. The Defendants were ordered to pay the Claimant’s costs jointly and severally, and were debarred from recovering any costs as executors from the estate pursuant to CPR 46.3(3) and 46PD.1 paragraph 1.1(c) on grounds of unreasonable conduct. The judge considered it unnecessary to determine the want of knowledge and approval ground.

Implications

The decision is a clear application of the principles governing fraudulent calumny and testamentary undue influence, as distilled in Edwards v Edwards. It illustrates the evidential difficulty facing a party who makes serious allegations against a potential beneficiary but then fails to substantiate or demonstrate belief in the truth of those allegations, particularly where, as here, procedural default has led to being debarred from defending.

The judgment reinforces that fraudulent calumny requires knowledge of falsity or recklessness as to truth, and that genuine belief, even in objectively untrue statements, will not suffice to set aside a will on that ground. It also illustrates how a testator’s physical frailty and dependence can render them more susceptible to having their will overborne, consistent with the observation in Edwards that a ‘drip drip’ approach can sap a weak testator’s will.

The case is significant for practitioners advising on contentious probate where family members make disparaging remarks about potential beneficiaries in the presence of a vulnerable testator, particularly during will instructions. It highlights the importance of solicitors recording the circumstances of the attendance, the presence of third parties, and the testator’s own expressed reasoning for departing from a natural pattern of disposition. The absence of such records here, together with the recital of unsupported ‘estrangement’, assisted the court in drawing adverse inferences. The judgment also shows the procedural importance of compliance with directions: the Defendants’ debarment effectively foreclosed their ability to evidence belief in the truth of their allegations, which was critical to the fraudulent calumny analysis.

Verdict: The court pronounced against the will dated 15 November 2016 on grounds of fraudulent calumny and undue influence, granted Letters of Administration to the Claimant, ordered an account of the estate’s assets held by the Defendants, and ordered the Defendants jointly and severally to pay the Claimant’s costs, with no entitlement to recover costs as executors from the estate.

Source: Whittle v Whittle [2022] EWHC 925 (Ch)