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Zahra Pabani
Zahra Pabani
Partner - Family Law
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Fraudulent Calumny: Poison in the Ear
Date:26 NOV 2019

Fraudulent calumny is a mouthful. It is therefore all the more surprising when I hear it come out of the mouths of lay clients when I first speak to them. Three years ago “fraudulent calumny” was at the back of practitioners’ minds; I certainly would not have heard it from clients. We may have been talking about similar facts but those discussions would always have been about undue influence and pressure on the testator (usually, to the caller’s detriment). Recently, however, something has changed, and we have seen a real growth in discussions around fraud in the creation of wills.

So why the upturn? One answer may be some recent press interest in cases coming out of the Rolls Building in London – both Rea v Rea and Re Lech received media coverage and garnered a high number of (largely inaccurate and, at times, objectively horrifying) comments from readers.

But any publicity is good publicity (so they say), so let’s discuss the story behind the headlines – and that lesser spotted claim, fraudulent calumny.

What is it?

Fraudulent calumny is a ground (alongside a lack of due execution, lack of testamentary capacity, lack of knowledge & approval and undue influence) for impugning the validity of a will once the testator has died. Indeed, it has long been considered a branch of undue influence. It is true to say that it often includes the same or similar nefarious practices that one associates with coercing a (usually vulnerable) person to change their will in your favour, but in law, it stands alone as a ground in its own right.

The leading authority (cited in the half dozen or so reported cases coming out of the High Court over the last two years) is Re Edwards, in which Lewison J (as he then was) stated that:

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

and

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

 

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As a result, the question asked by a court is not whether the gifts in the will are fair, but rather if, in making those gifts, the testator was working with true facts that had been genuinely presented to him.

For a more visceral interpretation, picture Polonius in Hamlet – dripping lies into the ears of the weak to effect his schemes (or, my preferred example, of Greyworm and King Theoden.in Lord of the Rings).

The description set out in Re Edwards does of course preclude the innocent assistant who has been asked to help and tells a mistruth in genuine error. The will is only invalid if the assistant deliberately (or at least, recklessly) provides facts which he knows are false, for the purposes of turning the testator against somebody whom might be expected to otherwise be included in their will.

 

Worked example

A useful example of fraudulent calumny is the case of Marcou v Christodoulides from 2017. 

The claimant, Andre, was able to prove that the defendant and sister, Niki, had made fraudulent representations to their respective mother in the lead up to the creation of her last will. As such, the last will was found to be invalid.

Mum was widowed and had two adult daughters – Andre and Niki. Mum had moved to the UK from Cyprus in the 1960s and, by the time of her death in 2012, had been in deteriorating health for many years.

Earlier in 2012, Mum chose to transfer about £500,000 to a joint account that she held with Andre. Niki was later added to the mandate of that joint bank account (so that she also received the £500,000 by survivorship when Mum died). However, the initial gift to Andre alone angered Niki and Niki sort revenge.

When Mum was in the process of sorting out her will, Niki represented to her that Andre had stolen the £500,000. Mum therefore felt hurt by Andre and less inclined to include provision for her; similarly, she is also said to have assumed that Andre was financially stable. This, as was worked out over the course of the 10 day trial, was patently false.

However, Mum, relying upon that deliberately false information from Niki, made her will overwhelmingly favouring Niki as a result. It was therefore up to Andre, upon discovering Mum’s intentions after her death, to bring the claim that she did (in which she was ultimately successful).

Conclusion

It remains to be seen whether the spate of fraudulent calumny cases coming through the courts will continue. From my perspective as a practitioner, however, this is absolutely something that those of us handling this work need to be aware of – and if my clients know all about it (whether from the Daily Mail or elsewhere), then all the better.

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