A recent decision by the High Court of an invalid will upheld a rare finding of fraudulent calumny which seems to have come right out of the pages of The Lord of the Rings.
The case of Christodoulides v Marcou was a dispute between two sisters about the validity their mother’s will. One sister (the claimant) alleged that the other sister (the defendant) had poisoned their mother’s mind against her by making up lies about the claimant’s behaviour, and that because of the lies she was left out of their mother’s Willl.
In a recent decision, the High Court refused permission to appeal an earlier decision of Mr Recorder Lawrence Cohen QC finding that the mother’s will was invalid.
What is Fraudulent Calumny?
Fraudulent calumny is where one person “poisons” a testator’s mind by making claims that they know or suspect to be false in an attempt to have somebody else left out the Will. To those familiar with The Lord of the Rings trilogy, both the books and the movies, it might be best understood as a real-world equivalent to the whisperings of Grima Wormtongue to King Theoden of Rohan.
In The Lord of the Rings, the character known as Wormtongue is the chief advisor to the King of the fictitious land of Rohan. He takes advantage of his position of trust to “poison” the King’s mind against his own family, and he even convinces the King to banish his own nephew and likely heir.
Thankfully for the heroes of Tolkien’s famous trilogy, Wormtongue’s cunning ruse is exposed by a wise wizard and the kingdom is saved. In real life, unfortunately, fraudulent calumny is often not discovered until after the testator (or testatrix) has made their Will and passed away.
The “Lies” That Were Told
In Marcou the Court confirmed that, to be successful, a claimant will have to show that the fraudulent calumny caused the testator to change their intention. In this case, the Court found that both daughters would have been included in the Will were it not for the fact one of them lied about the other.
As for the “lies” themselves, these were allegations and actions over a period of several months which led the mother to believe that the claimant had stolen €500,000 from her bank accounts in Cyprus. She also led their mother to believe that the claimant’s husband had kept £1,000 in rent he had collected on her behalf, even though she knew this was not true.
One noteworthy incident was when the defendant took her mother to three different banks to attempt to withdraw €10. At each bank, the mother was told she could not withdraw the funds, and this greatly distressed her. The defendant later suggested to her mother that the claimant had effectively stolen her funds. However, the real reason for the banks’ refusal was that the bank accounts operated on joint signatures, a fact which the defendant was fully aware of.
How Was Fraudulent Calumny Proved?
The Marcou case is significant because it provides guidance as to the test to be met in future cases and the types of evidence that might convince the Court. Fraudulent calumny cases are rare because it can be quite hard to find the right evidence. The claimant will have to prove fraud on the balance of probabilities, but the cogency and strength of the evidence require to prove it is heightened by the nature and seriousness of the allegation, by reference to Re Boyes.
The first key finding by the Court was that it had always been the mother’s intention to ensure a roughly equal distribution of her estate between her two daughters. The Court seems to have been convinced by the witness evidence. The professional will writer who arranged for the will to be drafted, only days before the mother passed away, gave evidence that the mother thought that excluding one sister “would allow a more even distribution of her assets to both daughters as Androulla [the claimant] had helped herself to a substantial amount of assets already and that Niki [the defendant] had not”. Even the defendant acknowledged that these were her mother’s wishes.
The second key finding was that the Will did not have the intended effect of distributing the estate equally between the two daughters. The Court held that this was because the defendant had lied to her mother, and fed her “the poison (for that it was) that her much loved and admired daughter Andre [the claimant] had somehow defrauded her.” Whilst the mother had thought she was balancing things out by favouring the daughter who had not defrauded her, she was in fact depriving her other daughter (the claimant) of her rightful share of the estate.
Cases of fraudulent calumny may be proved where there is evidence that misrepresentations led a testator to leave somebody out of their Will. In this case, the deciding factors appear to have been the Court’s poor view of the defendant’s witness evidence and the presence of convincing “neutral” witnesses.
The Honourable Judge had no hesitation in stating that the defendant was “a thoroughly dishonest and manipulative individual to whom integrity and truth are less important than achieving what she wants, even when she knows she is not entitled to it”. Conversely, other witnesses were described as being “mature, sensible and reliable” or, in the case of the will writer, “what he did remember provides important if not critical pieces of the factual matrix, namely as to what Agni [the deceased] believed as to her assets at the time and her intention in making a will. It also provides evidence of the part Niki [the defendant] played in the preparation of the will.”
In moving forward, a likely area for debate is whether fraudulent calumny requires evidence of a specific intention to induce the testator to change their will. Fraudulent intent had not been considered by the Judge in first instance, and the defendant sought to challenge this failure. Whilst the High Court refused her permission to appeal, noting that the defendant had never argued she did not intend to induce her mother to leave the claimant out of the will, it did leave the door open to making this argument in future cases.
In sum, it appears that a well-presented case based on solid evidence is required to overturn a will on the grounds of fraudulent calumny. All that, and a touch of Tolkien too.
If you have any questions about fraudulent calumny, a will dispute or contesting a will if you feel a will is invalid then please contact Nicholas Choiniere at 0113 336 3349 or by email at firstname.lastname@example.org.
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