Fraudulent Calumny

[MyCorona]

Is evidence of intention to write a "side letter" leaving a sum of money to a beneficiary sufficient for a fraudulent calumny claim? The solicitor advised the testator that the best way to leave an additional sum of money to a beneficiary of the pre-existing Will would be through a side letter rather than by changing the Will. However, this side letter was never completed because undue influence was exerted on the testator, resulting in the testator changing their mind about giving the beneficiary the additional sum.
In the limited case reviews available, only beneficiaries being disinherited following a change in the Will are mentioned.

[des8]

The use of "undue influence" is different to "fraudulent calumny"

You state the proposed change to the legacies was not made following "undue influence", not because of "fraudulent calumny"

Have you seen and read this note: https://www.thegazette.co.uk/all-notices/content/103529

[MyCorona]

Hi DES8, thank you for taking an interest in my question. Yes it is definitely fraudulent calumny, but my understanding is that fraudulent calumny was a particular type of undue influence. Would a claim only work if a Will was changed as opposed to a side letter not completed? Say, a solicitor had been instructed to write a legacy into a side letter but then the solicitor advised against it because both the solicitor and the testator had been swayed by fraudulent calumny from one of the other beneficiaries? I can only find cases relating to where a Will was changed. What happens when there was a clear intention to make a legacy but then ears are poisoned?

[des8]

A side letter, or letter of wishes, is only guidance and not legally enforceable, so I think it would be difficult to argue that its non completion has any material affect on the will, so a claim of "fraudulent calumny" would be pointless.

On the other hand if the testator was about to sign a codicil to vary a will, or to execute a new will, there might be a claim to be made.
However i would think good advice would be to consult a contentious probate solicitor before embarking on that journey.

[MyCorona]

Thank you DES8, It is possible it was a codicil but the testator's solicitor has refused a Larke v Nugus request. And the beneficiary who has lost out can't afford to pay a solicitor.

[des8]

The solicitor is under no duty to answer a Larke v nugus letter, especially if written by a lay person.
In fact he could be in trouble for breaching his duty of confidentiality.

I think that without professional help your friend will have great difficulty with this case.

Firstly he would need to prove the testator was intent on changing the will in your friends favour.
Then he would need to prove this was not done because of fraudulent calumny by a third person.

Should also be aware that to go forward with this sort of claim can be extortionate, especially if on the losing side.

If he wants to take this on, he really should at least run it past a contentious litigation solicitor.
A fixed fee (or even free) initial consultation will give him pointers, and if viable might show him a way of funding his possible claim

[MyCorona]

I am relieved to report that the Claimant's case has been settled in full after insisting on, but not finally having to resort to ADR. Had the claimant had to do this they would have also complained to the Solicitor's Complaints Authority, against the Executor and also against one of the beneficiaries, who also happened to be a solicitor, being the person who used Fraudulent Calumny. One wonders if they had been following the case of siblings David and Sonia Whittle which has been reported on in the press last week. Sonia used Fraudulent Calumny to get their father to write David out of his Will. As a result, Sonia lost her share of the £1m inheritance.

[des8]

Thank you for the update.
I had heard about the Whittle case, and wondered what was happening here... thanks for satisfying my curiosity