Fraudulent Calumny

9th April 2020 Will Disputes

What is Fraudulent Calumny?

Fraudulent calumny is a lesser known ground on which to challenge a Will. It is similar to undue influence in a number of ways, but in order to establish a case of undue influence, you must establish that the testator has been coerced to draft their Will in a certain way. Fraudulent calumny on the other hand has a more subtle effect. In a case where fraudulent calumny has occurred, the testator makes their Will of their own volition, but their perception of a potential beneficiary has been altered by another beneficiary and this has affected the way in which they have drafted their Will.

Case law has established that fraudulent calumny occurs where person A poisons the testator’s mind against person B, who would otherwise be a natural beneficiary of the testator’s estate, by casting dishonest aspersions on person B’s character. Person A must know that the information they are giving the testator is untrue, or not care whether or not it was true, so that when the testator drafted their Will they did not do so in the knowledge of true facts.

This is often explained as someone poisoning the mind of a testator about a particular person in order that the testator then freely excludes them from their Will.

An Example - Christodoulides v Marcou [2017]

Fraudulent calumny is better explained with reference to an example. In the above case it had always been the intention of the testator to leave her estate equally between her two daughters and to this end she decided that she did not want to draft a Will, but would allow her estate to pass in accordance with the Intestacy Rules, meaning that it would be split between her two daughters as she had no spouse. However, one of the daughters, Niki, attempted to poison the mind of her mother by telling her that her sister had stolen £500,000 from her mother, which resulted in her mother drafting and executing a Will shortly before she passed away, which left her entire estate to Niki.

These statements were found to be untrue and Niki was found to have acted dishonestly and fraudulently in giving this false information to her mother in the knowledge and hope that it would cause her mother to alter her Will in her favour.

On this basis, this Will was found to be invalid and the mother was deemed to have passed away intestate, resulting in her estate being split equally between the two daughters.

How Can I Prove It?

It is important to bear in mind that fraudulent calumny can be a difficult ground to prove as there is a high burden of proof. An important aspect of fraudulent calumny is that Person A must know that the information they are giving the testator is untrue or it must be shown they did not care whether the information given was true and this can be difficult for the other person to prove. Furthermore, there must be no other explanation as to why Person B has been excluded from the testator’s Will in order to establish the ground of fraudulent calumny, which again may be difficult to prove when the testator is no longer around to give evidence.

If you have concerns that someone may have poisoned the mind of a loved one by feeding them false and misleading information about you with the aim of influencing them to exclude you from their Will, it is important to seek specialised legal advice and assistance. Challenges to the validity of a Will on the ground of fraudulent calumny can be complex and it is therefore important to seek specialised legal advice before deciding to proceed with a challenge to a Will on this basis.

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Alison Parry is a Partner located in Manchester in our Will and Trust Disputes department

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