Fraudulent calumny occurs when a person has made false misrepresentations to a testator which poisons their mind against another so that they are excluded from the will.
What constitutes fraudulent calumny is summarised in Re Edwards [2007] EWHC 1119 (Ch) by The Honourable Mr Justice Lewison at paragraph 47:
“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.
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 judgment 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.
The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.
We look at the case of Christodoulides v Marcou [2017] EWHC 2691 (Ch) where the courts considered the concept of fraudulent calumny in relation to will challenges.
Background
Panayiotis and Agni Iacovou were Greek Cypriots who came to the UK in 1964. Between them they accumulated substantial assets in the UK and Cyprus. Panayiotis died in 2011 survived by his wife, Agni, and their two daughters, Niki Christodoulides and Androulla Marcou (known as Andre).
Following her husband’s death, Agni split her time between the UK and Cyprus. Niki, based in the UK, took care of her mother’s cash assets which were held in accounts in their joint names for ‘administrative convenience’.
It has always been Agni’s intention that, on her death, her estate would pass equally to her daughters and during her lifetime had transferred her one half share in the family home, Hazelmead, Arkley, to her daughters equally. This intention of equality was also apparent in lifetime gifts made by both parents to their daughters in which a gift to one daughter, would be matched by a gift to the other. Until two days before her death on 9 August 2012, Agni had never executed or had any intention of making a will.
In March 2012 Agni transferred €500,000 into a new account held in joint names with Andre. Even though Niki’s name was also added to the account at a later date, the opening of a new account by her mother jointly with her sister upset and angered Niki.
Niki’s subsequent actions led to her mother executing a will just days before her death which excluded Andre.
The claims
The will claim
Niki brought a claim to prove her mother’s will dated 7 August 2012 which was defended by Andre on the basis it was procured by Niki’s undue influence or, so far as it may be different, her fraudulent calumny.
The property claim
Niki also brought a claim to set aside the transfer of the property, Hazelmead, on the basis of presumed undue influence by Andre.
Niki led her mother to wrongly believe that Andre had been ‘helping herself’ to her assets. Agni also thought that Andre’s husband had stolen monies from her which reflected badly on Andre.
When instructing the will writer at a meeting only a week before her death (which Niki organised and attended), Agni excluded Andre from her will as she was of the opinion that Andre had already taken substantial assets from her estate, therefore she already had what she would have been entitled to on her death. Agni always intended for her daughters to receive equal benefit, so she thought this could only be achieved by Niki inheriting what was left.
Held
The will claim
In a judgment by Mr Recorder Lawrence Cohen QC, it was held that Niki had committed fraudulent calumny. Niki had poisoned her mother’s mind against her sister, Andre, in order to get her mother to exclude Andre from inheriting her estate. It was ruled that she achieved this by being a ‘thoroughly dishonest and manipulative individual’. The will was therefore set aside and the estate was to be distributed under the rules of intestacy to Niki and Andre in equal shares
The property claim
The transfer was valid and had not been vitiated by undue influence.
Permission to appeal
Niki sought permission to appeal against both findings.
The will claim
Niki argued that the trial judge had failed to apply the correct legal principles to establish fraudulent calumny. Niki relied on the case of Kunicki v Hayward [2017] 4 WLR 32 in which Mr Recorder Klein had, using the principle in Re Edwards, proposed a six stage test for establishing fraudulent calumny at paragraph 122:
- that A made a false representation;
- to B (the testator);
- about C;
- for the purposes of inducing B to alter their testamentary dispositions;
- that A made such a representation knowing it to be untrue or being reckless as to its truth; and
- that B’s will was made only because of the fraudulent calumny.
Niki therefore advanced that, in order for fraudulent calumny to be established, the court should also satisfy itself that Niki’s purpose in making the false representations was to get her mother to disinherit Andre and her mother only made her will because of the fraudulent calumny.
While Mr Justice Morgan agreed that the Recorder did not make a specific finding that Niki’s purpose was to induce her mother to make a will that excluded Andre from benefitting, he said that the:
‘established approach of an appeal court is not to allow a point of this kind to be taken for the first time on appeal in those circumstances’.
Mr Justice Morgan also found that while appropriate to the facts in Re Hayward, he did not deem that in this case whether Agni made her will only because of the fraudulent calumny was the correct statement of the relevant test. The question should be one of causation or inducement for the Recorder:
“The calumny must induce the change in the testator’s intentions. The challenger must prove that on the balance of probabilities. If it is possible that the calumny did induce the change, but the court is not persuaded on the balance of probabilities that it did induce the change, the challenge will fail.”
On the facts, Mr Justice Morgan did not consider that Niki had any real prospect of success on challenging the Recorder’s findings as to causation or inducement.
Niki’s permission to appeal was therefore refused.
The property claim
At first instance, Niki sought to set aside the transfer on the basis of presumed undue influence by Andre as:
- there was a relationship of trust and confidence between Andre and Agni;
- the transfer of the property was a transaction that called for an explanation; and
- Andre was not able to rebut the resulting presumption of undue influence.
Niki challenged the Recorder’s findings at first instance that the transfer of the property did not call for an explanation (the rebuttal of the presumption was not considered at first instance as the claim failed at the second question).
Mr Justice Morgan held that if Niki was successful at first instance in arguing that the transfer called for an explanation, then that would have led the court to consider whether Andre had rebutted the arising presumption of undue influence. Mr Justice Morgan considered that Andre would have a very strong argument to rebut the presumption based on the Recorder’s findings which led to him reaching the conclusion that no explanation was called for.
Mr Justice Morgan said that even if he was wrong and the court should remit the matter to the Recorder for him to consider the issue of the rebuttal of the presumption, it must be considered whether this would be appropriate. The only effect on the parties would be one of costs as, if the property transfer was set aside, the property would fall into Agni’s estate which Niki and Andre were entitled to in equal shares.
Permission to appeal was denied, with Mr Justice Morgan finding that:
“When I take into account the possible outcomes of the appeal and the different ways in which the appeal might be dismissed, my overall assessment is that the appeal does not have a real prospect of success. In addition to that assessment, in view of the fact that the only possible effect of a successful appeal is in relation to the previous order for costs and the prospect of a successful appeal is low, I consider that I should exercise appropriate caution before granting permission to appeal in this case. The exercise of such caution reinforces my conclusion that it is not appropriate in this case to give permission to appeal.”
