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A tale of poisoned parents is not how you might expect an ordinary Will disputes article to begin, however the High Court case of Christodoulides v Marcou [2017] required the Court to consider a validity claim on the rare grounds of “fraudulent calumny”.
What is fraudulent calumny?
It is a familiar concept that if a testator’s wishes are influenced and altered by pressure or coercion applied by a third party, this may be considered undue influence.
How does this relate to fraudulent calumny? Undue influence can be procured by either coercion (the ‘usual’ situation) or by fraud. Fraudulent calumny covers the situation where the testator is compelled to express or change their testamentary wishes on the basis of false representations (fraud). The end result of procuring the testator to alter their wishes is the same, but the method is different – the testator is convinced of an untruth which causes them to think about their testamentary wishes differently.
The case of Re Edwards [2007] set out the principles of fraudulent calumny and the same principles were applied in this case.
The basic premise is that Person A “poisons” the testator’s mind against Person B and as a result Person B alters their testamentary wishes. Person B, notwithstanding the “poison”, would otherwise be a natural beneficiary (for example and as in this case, a child of the testator). In these circumstances it is possible to set aside the Will.
Was there a fraudulent calumny in this case?
This case considered Agni Lacovou’s (Agni) Will dated 7 August 2012 in which she left her entire Estate to her daughter, Niki Christodoulides (Niki), to the exclusion of her second daughter, Andoulla Marcou (Andre).
Andre claimed that Niki had “poisoned” her mother’s mind over a number of months and persuaded Agni of a number of false allegations about her including that she had stolen from Agni and “helped herself” to property in her Estate.
For there to be a fraudulent calumny, Niki must have known or not cared that the aspersions were false. The Court concluded that Niki was a “thoroughly dishonest and manipulative individual”. Andre was able to provide explanations for Niki’s allegations and confirm their inaccuracy.
A suggestion of fraud is always considered to be very serious and as such the Court require there to be no other explanation for the disinheritance. In this case the Court was assisted by clear evidence from a professional Will writer who was able to speak of the Deceased’s intentions. The Deceased wanted to benefit her daughters in equal shares. To achieve this she excluded Andre from her Will on the basis of her (false) belief that Andre had already “helped herself” to her share of the Estate.
The Will was held to be invalid and in the absence of a previous Will, the rules of intestacy applied to Agni’s Estate. As a result, both sisters benefitted from the Estate.
Niki sought to appeal this decision but permission was refused.
The moral of the story
This case is a useful reminder that there may be an option to challenge a Will where there is a suggestion of undue influence procured by false representations. There is a very high bar in respect of this type of claim and careful consideration should be given to whether the claim can be fully evidenced and that there is no other plausible explanation for the testator’s wishes. One of the greatest challenges here is that the person who suffered the “poison” is unable to give evidence.
We are reminded that the Deceased’s Will file can be a crucial source of evidence, particularly if the Deceased’s wishes and thoughts have been recorded in detail – the Will file and evidence given by the Will writer added substantial weight in this case and assisted the Court in their consideration of fraudulent calumny.
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