In the recent case of Marcou v Christodoulides , Mr Recorder Lawrence Cohen QC held that a will had been procured by "fraudulent calumny".
In this case Agni Lacovou, who died in 2012, left a will that gave her estate to one of her two daughters, Niki Christodoulides (Niki). She made the will in those terms because she believed that her other daughter, Androulla Marcou (Andre) had already received a substantial amount of her assets.
Andre claimed that the will was invalid on the basis that it was procured by the undue influence and, so far as it is different, fraudulent calumny, of her sister Niki. Andre claimed that she had not received substantial sums from her mother, and that Niki had "poisoned" Agni's mind into believing that Andre had stolen assets from her, or had "helped herself" to Agni's property.
Niki denied that she made any such representations to her mother - at least none which she did not honestly believe to be true. However, on the evidence before it, the court accepted the claim and found that the will had been procured by fraudulent calumny. As a result the will was declared invalid.
What is fraudulent calumny?
Fraudulent calumny is a form of fraud whereby a false representation about the character of an individual is made to the testator for the purpose of inducing the testator to exclude that individual from any benefit in his or her will. It was analysed in the case of Re Edwards  when the judge stated:
"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."
While there are similarities between undue influence and fraudulent calumny, fraudulent calumny is not about the testator being threatened or unduly pressured into making his or her will in a particular way, but rather it is the falsity of representations made which induces the testator to exclude a certain individual from their will.
What is required to prove fraudulent calumny?
As set out in Re Edwards , in order to prove fraudulent calumny, a claimant will need to show:
1) That there had been a "poisoning of the mind" of the testator;
As stated above, there must have been a false representation about the character of an individual, made to the testator, for the purpose of inducing the testator to exclude that individual from any benefit in his or her will.
2) Knowledge of the falsities
The person alleged to have been poisoning the testator’s mind must either:
- know that the aspersions are false; or
- not care whether they are true or false.
Therefore, in the circumstances where a person believes that he is telling the truth about a potential beneficiary, even if what he tells the testator is objectively untrue, the will is not liable to be set aside on the ground of fraudulent calumny alone.
3) That he or she was a "natural beneficiary" of the testator's estate
4) That there is no other explanation for the disinheritance
As it is a charge of fraud, a claim in fraudulent calumny requires a higher degree of proof - and a vital element of fraudulent calumny is that there can be no other explanation for the disinheritance.
Should a will challenge be successful on the grounds of fraudulent calumny, the will would be declared invalid and the deceased's estate be distributed in accordance with any previous valid will or, if there is no earlier will, pursuant to the intestacy rules.