This year has seen a rarely reported case of fraudulent calumny (or, "the making of false and defamatory statements about someone to damage their reputation; slander" to you and me!).
When considering possible avenues to challenge the validity of a will, fraudulent calumny is often overlooked. The most common grounds are a failure to comply with the required formalities to make a valid will, lack of testamentary capacity, lack of knowledge and approval, forgery or undue influence.
Fraudulent calumny is similar to undue influence, but distinctly different in the sense that undue influence requires behaviour which is threatening, persuading or otherwise coercing the testator to make their will in a particular way, but with fraudulent calumny the testator makes their will of their own free will and volition but having had their perception of a potential beneficiary changed by another beneficiary. It is, therefore, a much more subtle form of influence.
In Christodoulides v Marcou this year, a will made two days before Agni Lacovou's death was found to be invalid on the basis that the deceased’s daughter Niki had told her lies about her other daughter, Andre, poisoning her mind against her sister, in order to ensure she was disinherited. Agni Lacovou was found to have died intestate. The will left the entire estate to Niki because Niki had led her mother to believe that Andre had stolen or helped herself to her mother’s assets and so had already received substantial sums from her.
Fraudulent calumny occurs where a beneficiary makes a false representation, or a gradual series of false representations, to the testator about the character of a potential beneficiary. Therefore, inducing the testator to leave more monies to the perpetrator of the false representation or to not leave monies (or leave less monies) to the potential beneficiary who would otherwise have the natural expectation that they would benefit.
The concept was expressed succinctly in the leading authority of Edwards v Edwards [2007] “The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside”.
In this case, the deceased mother left her whole estate to her one son, excluding her other son. Again, the first son had led his mother to believe that the other son had stolen from her, leading her to change her will in his favour. The will was found to be invalid because of this false representation, together with the fact that it was proven that the first son had a long-standing dislike and vindictiveness towards his brother and that the deceased was frail and vulnerable, and frightened of him.
If the person makes a false representation but genuinely believes it to be true, there is no cause of action here; it is only if they know it is not true or are reckless as to whether it is true or false that there can be fraudulent calumny. There can also be no other explanation for the disinheritance; i.e. it would not have happened anyway for other reasons.
It is rare to be successful in challenging the validity of a will on the basis of fraudulent calumny because it is rare to have the evidence that it occurred as, usually, it would happen behind closed doors, the perpetrator will deny it, and the deceased is no longer with us to give evidence. Because of the severe nature of the dispute, the burden of proof is also higher and so often, even though the allegations are made, in the alternative a claim based on a ‘lack of knowledge and approval’ is the preferred route as it is more likely to be successful.
