In the recent case of Christodoulides v Marcou the High Court refused permission to appeal against the first instance decision that a will was invalid by reason of ‘fraudulent calumny’, a rarely successful ground on which to challenge a will.
The dispute was between two sisters (referred to as Andre and Niki) and related to the validity of a will made by their mother, Agni Iacovou, on 7 August 2012, just days before her death. Under the will, Agni left the entire residuary estate to Niki. The will also contained a clause declaring that she had not made any provision in the will for Andre. While Niki had asked the court to pronounce for the will in solemn form (i.e.to uphold the will), Andre alleged her mother had mistakenly believed that she (Andre) had stolen or taken a large amount of money from her and that Niki had committed ‘fraudulent calumny’ and that the will should be set aside.
Fraudulent calumny is understood as follows, ‘if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting false or dishonest representations on their character, then the will is liable to be set aside’ [Re Edwards 2007]. Fraudulent calumny does not require the testator to have been threatened or unduly pressured into making their will in a particular way, but rather that knowingly false representations are made by the benefitting party which induce the testator to exclude a certain individual from benefiting from their will.
In this case, it was understood that it had always been Agni's intention to ensure a roughly equal distribution of her estate between her two daughters. Even Niki accepted that this was Agni’s intention as late as March 2012. Mr Antoniou, the professional will writer who took instructions and arranged for Agni’s will – the meeting for which was set up by Niki - gave evidence that Agni believed that excluding Andre ‘would allow a more even distribution of her assets to both daughters as Androulla had helped herself to a substantial amount of assets already and that Niki had not’. Andre claimed that this was informed by Niki 'poisoning' Agni's mind with a number of false misrepresentations about her such as, that Andre had stolen or 'helped herself' to Agni's assets by moving control of Agni's Bank of Cyprus account into the joint names of Agni and Andre (although two days later Niki had been added as a joint account holder), that Andre's husband had stolen £1,000 from Agni by collecting rent due to her and pocketing it, and also unfairly distorting Andre's comments by suggesting to Agni that Andre was questioning her sanity.
Niki was referred to by the Judge as being a 'thoroughly dishonest and manipulative individual' (referenced at paragraph 16 of the judgment) and Andre successfully challenged the validity of Agni's will on the grounds of fraudulent calumny. This meant that Agni's will would be declared invalid and the Agni’s estate would be distributed in accordance with any previous valid will. However, in this instance, since Agni did not have an earlier will, her estate would be distributed pursuant to the intestacy rules and both sisters would benefit from her estate.
Such claims are rarely argued to trial, not least because to evidence such claims will be difficult, in particular that a specific statement is untrue and it will be necessary to establish that the facts fit the hypothesis and that no other hypothesis can be supported.