when making a Will
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'Fraud' is quite a wide term in the context of contesting a Will and the acts complained of may in fact amount to another type of plea. Some examples of behaviour that might loosely be termed fraud include:
Fraud may be claimed if the Will or any part of it is a forgery. Alternatively it might be claimed where an individual has impersonated the testator in order to execute a Will (e.g. in front of a solicitor). Another possibility is that the Deceased updated their Will in a way that was not favourable to particular beneficiaries and those fraudulently destroyed the new Will so that the previous Will would apply.
Lack of knowledge and approval
Lack of knowledge and approval occurs when the testator signed the Will believing it to say one thing but in fact it said another. It would usually be better to claim that there was a lack of knowledge and approval rather than to claim fraud took place in such circumstances because fraud is a criminal offence that must be proved beyond reasonable doubt, whilst a claim for lack of knowledge and approval will be heard in the civil courts where decisions are made on the 'balance of probabilities'. This means that the judge will decide whether one version of events is more likely or less likely than the other - and the winner will be the version that is more likely, even if it is only 1% more likely!
This occurs where Person A made false representations to the testator about the character of Person B, which caused the testator to modify their gift to Person B or exclude Person B altogether from their Will.
If you have been researching the different grounds on which to contest a Will, you might have come across the last type of example and wondered how this is not the same as undue influence. In fact, the two are similar. However, with undue influence, the person must have threatened, persuaded or otherwise coerced the testator to make their Will in a particular way, whilst with fraudulent calumny there does not need to be any such coercion - the testator's choices are made because one beneficiary has twisted their perception of a potential beneficiary. Fraudulent calumny could therefore be said to be a subtle form of undue influence - clever and more manipulative - even though the end result may be the same. Note that unless the beneficiary making the accusations knows them not to be true, or is reckless as to whether they are true, there can be no fraudulent calumny.
Fraudulent calumny is rarely used as a basis to challenge a Will, for a number of reasons. These include:
- Fraud typically takes place behind closed doors and it is very difficult to gather evidence that one beneficiary poisoned the testator's mind against another.
- One of the key witnesses - the Deceased - is no longer around to give evidence, and the other key witness - the accused beneficiary - is likely to deny knowledge of such matters.
- The burden of proof for such claims is higher than for a civil claim.
Claims will usually proceed on the basis of 'lack of knowledge and approval' instead. When such a claim is made and suspicious circumstances set out, the burden of proof is placed on the person propounding the Will to dispel those suspicious circumstances. If they fail, the Will is held to be invalid.
In conclusion, many of the ways you can contest a Will appear to fall under the general meaning of the word 'fraud' but it is important to remember that fraud is a criminal offence requires a very high standard of proof. If, therefore, there is an alternative way to contest the Will in the civil courts, this is usually advisable because civil claims are judged on the balance of probabilities. Often in such claims, if circumstances can be identified that call for an explanation, this is enough to shift the burden of proof over to the person seeking to have the Will admitted. If they are unable to provide evidence, the Will is held to be invalid. Such claims are far more likely to succeed.
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