Posted: Wednesday, 1 April 2026 @ 10:20
Risk Factors to Consider – Undue Influence and Fraudulent Calumny
Understanding the subtle threats to testamentary freedom
When a Will is challenged after death, two of the most complex allegations a practitioner may encounter are undue influence and fraudulent calumny. Both strike at the heart of testamentary freedom – the principle that a person should be free to dispose of their estate as they wish. Yet both are notoriously difficult to prove, requiring careful understanding of the law and, crucially, meticulous practice by the Will writer taking instructions.
What Is Fraudulent Calumny?
Fraudulent calumny is a variation on the theme of undue influence or coercion. Whilst undue influence and coercion is primarily a case of the perpetrator gaining an inheritance against what might be the testator's wishes, fraudulent calumny is where a perpetrator deliberately influences the testator to not leave an inheritance to someone.
This can be best characterised in more simplistic language as poisoning the mind of the testator against leaving an inheritance to someone in favour of leaving that inheritance to the perpetrator.
Undue Influence and Coercion: The Legal Framework
Undue influence is notoriously difficult to 'prove' on the testator's death as it requires not only demonstrating that the freedom of testamentary disposition doctrine has been usurped by the perpetrator, but that the discussion between the two parties was more than a heated argument.
Of themselves, therefore, strong disagreements and arguments between testator and, for example, the family are perfectly acceptable, as are appeals to the pressure to 'do right by the family'. And it has to be said for many families these behaviours are often the normal cut and thrust of family relationships. It's just normal behaviour.
What Is Undue Influence and Coercion?
There is no presumption of undue influence; it is up to the person alleging it to prove it. By its very nature, a decision on proving undue influence is determined heavily by the facts of the specific case; albeit decisions are also determined based on previous precedents.
It can be characterised as:
- Pressure that overpowers the voluntary conscious free choice of the testator, without a convincing judgement as to why the testator would make such decision.
- It is also characterised as forcing the testator to succumb to the perpetrator's coercion for the sake of a quiet life.
- It is not necessarily for the coercion to be via one 'explosive' argument, threat, but can also occur through a slow drip, drip, drip process of wearing down the testator's preferred instructions.
Case Study: Rea v Rea [2024] – Lessons in Vulnerability and Personality
The complex issues are best illustrated through the recent case of Rea v Rea [2024]. The deceased – Anna – had made a Will in 2015 leaving the house to her daughter Rita, who had become her care provider. However, the residue was left to Rita and her three brothers. The 2015 Will revoked a previous Will made in 1986 leaving all to the children in equal shares.
The three sons challenged the Will alleging that Rita had unduly influenced their mum. Although the initial challenge was successful, the case went to the Court of Appeal, which ultimately decided there was no undue influence or coercion by Rita.
The Court made two important observations which apply to how Will writers should 'read' their client's circumstances:
- Just because Anna – the mother – was vulnerable did not automatically indicate that she was unable to make her decisions for herself.
- Just because Rita – the daughter – had a forceful personality did not automatically mean she was unduly influencing Anna.
For coercion to be proved the metric is that 'the coercion must be more probable than any other explanation until proven otherwise'. In other words, even if a family suffers tensions, and testators might be considered isolated from other members of the family, the bar to decide on whether coercion has occurred or not is high.
What Can Be Done? – Mitigating Undue Influence
The most obvious is to mitigate undue influence and coercion by speaking preferably face to face with the client only.
Gaining trust of the client should be the main objective of the Will writer at this stage. It's important to send messages of trustworthiness, confidentiality and convey you are there to advise the client and not to make a sale.
Understanding the dynamics within the family is also helpful in deciding whether there is a likelihood of coercion.
As always, minuting conversations and decisions through comprehensive Larke v Nugus compliant records are vital.
Fraudulent Calumny: The Specifics
The specifics of fraudulent calumny are:
- The perpetrator poisons the testator's mind against another person who importantly would have in the ordinary course of family life be considered to have been a natural beneficiary, by casting dishonest assertions.
- The perpetrator must be proven to have known that the assertions were not true or at least did not care whether they were not true.
- The test as to whether fraudulent calumny has indeed taken place is similar to undue influence and coercion – did the testator act as a free agent?
What Can Be Done? – Spotting Fraudulent Calumny
Obtaining a view as a Will writer that there might be fraudulent calumny is more difficult to deduce.
The tips set out above relating to undue influence and coercion often apply. But in addition, if the client is determined to exclude or reduce a benefit of someone who would ordinarily be expected to inherit, it's worth exploring the reason for the exclusion.
Is the messaging the client is giving you more about "X said this about Y so I'm excluding Y" (and X is therefore getting more of the inheritance), or is the story more about how Y has behaved in relation to the testator?
Key Takeaways for Practitioners
📋 Practice Points
- See clients alone – wherever possible, take instructions without other family members present
- Document everything – comprehensive Larke v Nugus compliant notes are essential
- Explore reasons for exclusion – particularly where a natural beneficiary is being excluded or reduced
- Look for patterns – is there a consistent story about the excluded person's behaviour, or does the narrative centre on what someone else has said?
- Remember vulnerability ≠ incapacity – as Rea v Rea reminds us, a vulnerable client may still have full testamentary capacity
- Personality ≠ influence – a forceful personality does not automatically equate to coercion
Technical Support
Paul Tansley
Disclaimer: This article provides general information about undue influence and fraudulent calumny for educational purposes. It does not constitute legal advice. Every case turns on its own facts, and professional legal advice should be sought when concerns about testamentary capacity or undue influence arise.