Sharon Jane Sharpe v Wayne Terrance Dyson & Anor.

Fraudulent calumny requires proof that a false representation about a beneficiary was made to the testator to induce a testamentary change, knowing it to be false or recklessly indifferent to its truth, and that it caused the will to be made. The burden is high, although the standard remains the balance of probabilities.

A testator may form an unfavourable view of a beneficiary independently, and may alter a will for reasons of his own. Independent advice is a relevant factor in deciding whether alleged calumny caused the testamentary disposition. On the facts, the will-maker acted as a free agent and the challenge failed.

Brian Dale’s 2019 will left his estate to Sharon Jane Sharpe, appointing her and her daughter as executrices. His nephews, Wayne Dyson and Andrew Ellis, sought to propound an earlier 2003 will under which they benefited.

The defendants alleged that Mrs Sharpe had poisoned Mr Dale’s mind by making false representations about them, including that they had taken his money, threatened him and intended to evict him. The central issues were whether the representations were made, whether they were fraudulent, and whether they caused the 2019 will.

1. Fraudulent calumny. The defendants had to prove: a false representation to the testator about an existing or potential beneficiary; an intention to induce a testamentary alteration; knowledge that the representation was false or recklessness as to its truth; and that the will was made only because of the calumny. The civil standard applied, but a high degree of proof was required.
2. The pleaded allegations were not established. Mr Dale did not want to visit Mrs Dyson in hospital or the care home. There was no proof that Mrs Sharpe said that the defendants intended to evict him, or that they were bribing her. The allegations concerning money were substantially true in the relevant respects: the defendants had taken control of money from Mrs Dyson’s estate and had not accounted to Mr Dale for it. There was also evidence that they had threatened and abused him.
3. Mr Dale retained testamentary capacity and formed his own unfavourable views of the defendants as a result of their behaviour. He was not dependent upon representations by Mrs Sharpe and acted as a free agent.
4. In any event, Mrs Ridgway-Coates, an independent solicitor, took Mr Dale’s instructions alone, discussed his reasons for changing his will, and later supervised its execution. Even if conduct amounting to fraudulent calumny had existed, the solicitor’s intervention would have negatived its causative effect on the evidence.
5. The court pronounced for the force and validity of the will dated 16 August 2019, decreed probate in solemn form in favour of Mrs Sharpe and Riki Sharpe, discontinued the caveat, and dismissed the Defence and Counterclaim.