What is fraudulent calumny?

Posted by Xiao Hui Eng on
Fraudulent calumny is fraudulent misrepresentation made about an individual to a testator, for the purpose of inducing the testator to exclude that individual from any benefit in his Will. Lewison J in the case of Re Edwards[1] explained the concept thus:

"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."

What is the difference between fraudulent calumny and undue influence?

Undue influence occurs where a testator is threatened or pressured into making his Will (or into taking some other action in law) in a particular way. Fraudulent calumny occurs where the making of the Will is independent but the testator has made his decision to exclude a certain individual as a result of false representations made about that individual.

Christodoulides v Marcou [2017]

Fraudulent calumny was alleged in the recent case of Christodoulides v Marcou[2]. In this case, Agni Iacovou, by her Will, left everything to her daughter Niki Christodoulides. Agni's other daughter, Androulla Marcou, alleged that the Will of Agni was procured by her sister's fraudulent calumny. (Niki's unsuccessful allegation in the same case that Androulla had exerted undue influence over their mother's transfer of her family home will not be considered for the purposes of this piece.)

The basis of Androulla's fraudulent calumny claim was that her mother had excluded her from her Will under the belief that Androulla had stolen or helped herself to her mother's assets and Agni therefore sought to equalise the distribution of assets between her daughters by leaving all her remaining assets to Niki in her Will. Androulla alleged that Agni’s belief was brought about by Niki's fraudulent misrepresentations.

Mr Recorder Lawrence Cohen QC considered evidence including Niki's accusations in front of Agni that Agni's bank had conspired to defraud her and that the bank's staff was taking a backhander from Androulla, and that Androulla had tricked their mother and put her money where she would never be able to get her hands on it again.

The Recorder applied the law on the mental element of fraudulent calumny set out in Re Edwards and reiterated in Re Boyes[3] where Proudman J stated that:

"The essence of fraudulent calumny is that 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. In my mind if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the Will is not liable to be set aside on that ground alone."

Outlining what it would take to discharge the burden of proof resting on the person alleging undue influence or fraud, the Recorder restated the evidentiary principles in Re Boyes:

"Although the burden of proof is the civil standard (ie on the balance of probabilities) and undue influence can be found by the court drawing inferences from all the circumstances, the cogency and strength of the evidence required to prove fraud is heightened by the nature and seriousness of the allegation."

The Recorder further added that the less likely an allegation was, the more convincing the evidence would have to be to prove it.

On the evidence, the Recorder found that the elements of fraudulent calumny were made out. A later application by Niki for permission to appeal against the decision was not allowed.

[1] Re Edwards [2007] EWHC 1119 (Ch)

[2] Christodoulides v Marcou [2017] EWHC 2632 (Ch)

[3] Re Boyes [2013] EWHC 4027 (Ch) 

About the Authors

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Xiao Hui is a Solicitor in our Litigation Dispute Resolution team.

Photograph of Stephanie Walls

Stephanie is a partner in the Thames Valley Litigation and Dispute Resolution team whose expertise spans succession and trust disputes and advising in relation to all types of complex commercial disputes.

Stephanie Walls
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