Whittle v Whittle & anr [2022] WTLR 1153

Analysis

The deceased executed his will on 15 November 2016 and died on 7 December 2016 from leukaemia. Pursuant to the will, a bequest of cars and other chattels was made to the claimant (the deceased’s son), while the defendants (the deceased’s daughter and her partner) were made executors and beneficiaries of the residuary estate. The will justified the provision to the claimant on the basis that he had become estranged from the deceased.

The claimant challenged the will on the basis of fraudulent calumny, undue influence and want of knowledge and approval. In particular, the claimant claimed that the first defendant falsely represented to the deceased while the deceased was residing in a care home that the claimant had stolen money from his mother-in-law and was a violent man who assaulted women, and that the first defendant made similar allegations of financial abuse and unconscionable behaviour to a trainee legal executive who had attended on the deceased at his home to take instructions on his will the day after he returned from the care home. The first defendant admitted making negative comments but denied fraudulent calumny on the basis of truthfulness or a genuine belief in truthfulness. Before trial, the defendants had been debarred from defending the proceedings, having failed to comply with an unless order to pay costs, having failed to provide disclosure and exchange statements of fact as ordered, and having been refused relief from sanctions. The trial proceeded on written evidence.

Held:

1. (1) The claimant had proved, on the balance of probabilities, that the first defendant had poisoned the mind of the deceased by casting aspersions on the claimant’s character that the first defendant either knew were false or did not care whether they were true or false. The aspersions cast on the claimant and his wife were not only unproven but completely false, and were made stridently, forcefully and repeatedly. They had led the deceased, who was suffering from ill-health, to challenge the claimant on the allegations raised by the first defendant. The attendance note from the trainee legal executive evidenced the first defendant’s character assassination and false allegations which led the deceased to give the instructions he did in respect of his will. The first defendant had also sent a letter of wishes on the deceased’s behalf but without producing evidence of authority to do so, to further her interests.
2. (2) On the available evidence, the deceased had not made a previous will, and as such, the laws of intestacy would apply.
3. (3) Even if fraudulent calumny was not made out, undue influence was. In addition to the findings of fact on fraudulent calumny, the claimant’s evidence suggested he was not estranged from the deceased, the solicitor was likely arranged by the first defendant to attend on the deceased the day after he left the care home, and there was no evidence that the first defendant’s tirade to the trainee legal executive who attended was interrupted by the deceased, which suggested that he had heard the allegations previously and was persuaded by them.
4. (4) The defendants were not entitled to recover any costs as executors of the estate on the grounds of unreasonable conduct pursuant to CPR Part 46.3(3) and PD 46 para 1.1(c).

JUDGMENT DISTRICT JUDGE WOODBURN: [1] The Claimant (‘C’) in this case is the brother of the First Defendant (‘D1’). The Second Defendant (‘D2’) is the partner of D1. C is married to Julie and, together, they have two adult sons. [2] The Defendants are, jointly, the executors of the Will of Gerald Arthur Whittle (‘Gerald’), …

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