Disinheritance by Deceit – Fraudulent Calumny

Fraudulent calumny – it sounds like a term which might be flung across a Dickensian courtroom. Or an accusation, possibly followed by a challenge of pistols at dawn…

But despite its fusty old name, it is very much a part of the law today. So what is it? And why should you be aware of it?

What is fraudulent calumny?

The word calumny is basically another word for slander – spreading lies to smear someone’s reputation. Fraudulent calumny, as a legal concept, is when someone makes a dishonest statement to ‘poison’ another person’s mind against a possible beneficiary of a gift or Will – done with the intention of preventing or reducing that gift or inheritance.

If fraudulent calumny can be proved in connection with a Will, the Will is considered to be invalid.

However, there are several matters which must be proved to successfully claim a Will has been compromised by fraudulent calumny. These are best illustrated with an example:

Suppose you believe your sister turned your late mother against you, and you were cut out of her Will as a result. In order to establish fraudulent calumny on your sister’s part, you would need to prove:

1. Your sister made a representation to your mother about you
2. Your sister did so intending that your mother would cut you out of her Will
3. Your sister knew what she represented was false, or she didn’t care whether it was true or false. If your sister honestly believes what she is saying to be true, then no fraudulent calumny has taken place.
4. There are no other explanations for why your mother disinherited you

Another point to be aware of is that the beneficiary in question must be a person; it cannot be another legal entity like a company or a charity.

A recent case example – Marcou v Christodoulides

The example described above is exactly what happened in the recent case of Marcou v Christodoulides [2017]. Androulla Marcou claimed that her sister Niki Christodoulides had poisoned their mother’s mind against her, and, as a result, was excluded from their mother’s Will.

Agni Lacovou’s Will gave nothing to Androulla, despite containing assets worth a considerable amount. Niki was to receive everything.

The Court considered several instances where Niki was alleged to have misrepresented Androulla to Agni. One instance involved the distortion of an email Androulla had sent to Niki. The email expressed Androulla’s wishes for Agni to undergo eye treatment. Niki told her mother of the email and translated it into Greek for her. In doing so, she said that Androulla was questioning Agni’s sanity, saying she was seeing ‘wild dogs running along the wharf’. The Court found this to be a dishonest manipulation of the email’s contents.

Further support for Androulla’s claim was provided by Agni’s Will writer. He said Agni’s reason for excluding Androulla was the belief that this “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”.

In fact, Androulla had not ‘helped herself’ to Agni’s assets. The Court found that it was Niki who had led Agni to believe otherwise.

Niki had been present when the Will writer was taking Agni’s instructions. Niki had represented that €500,000 of Agni’s money was now in Androulla’s name. In reality, the sum was held in the joint names of Agni, Androulla and Niki.

The Court accepted Androulla’s claim. They ruled that Agni’s Will was invalid due to Niki’s fraudulent calumny.

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The difficulties of proving fraudulent calumny

As mentioned above, to successfully prove fraudulent calumny, it must be the only possible explanation for the disinheritance, based on the facts of the case. If any other interpretations are available, the claim will fail. This makes it very difficult to prove, especially when – as in the case of a Will – the person whose motivations are being considered has passed away.

In Androulla’s case, the Will writer’s evidence showed that Agni thought cutting Androulla out was the best way to ensure a fair distribution of her estate. She wanted both of her daughters to inherit; she just believed Androulla had already received her share. It stands to reason then that Agni would never have disinherited Androulla had Niki been truthful. Niki’s fraudulent calumny was the only reason Androulla was left out of the Will.

The importance of the ‘only explanation’ requirement is demonstrated by another case: Re Hayward [2016] EWHC 3199 (Ch). We looked at the Hayward in a previous article.

The case also involved a claim that fraudulent calumny had cut down an inheritance. Iain Hayward used it as one of the grounds for challenging the Will of his father, Jack.

When Iain received only a small proportion of Jack’s £1.3 million estate, he argued that his sister Fiona had poisoned their father’s mind against him. Iain alleged that Fiona had tried to make him appear untrustworthy in a series of emails to Jack. The emails concerned the way in which Iain had administered his late mother’s estate.

However, his claim of fraudulent calumny failed on several points:

• Most notably, it was not held to be the reason why Jack had reduced Iain’s inheritance. Instead, Jack’s reason was considered to be a belief that Iain was poor at managing his own money – not any inefficiency in administering an estate.
• The Court also considered that Fiona’s emails did not express any strong opinion over whether Iain was trustworthy, just that he had not administered their mother’s estate very well. Furthermore, this did not appear to be dishonest, as evidence indicated that Iain had in fact been inefficient with the administration.

Taken together, it could not be said that Fiona had poisoned her father’s mind against Iain with statements she knew to be false, nor was it the only possible explanation for Jack reducing Iain’s inheritance.

What should I bear in mind?

Fraudulent calumny is a possible basis upon which to challenge someone’s Will. If successful, the Will in question will be declared invalid. This means that a previous, valid Will would stand in its place, or, if no such Will exists, the deceased will be treated as having died intestate.

If you think a relative or loved one might be subject to someone else’s influence, it is important to seek specialist legal advice. Given the difficulty of proving fraudulent calumny, strong evidence is required if a claim is to succeed. Naturally, such a claim could only be brought after the Will in question has taken effect.

However, a better course of action is to prevent such issues arising in the first place. Discussing your situation with a solicitor may help in avoiding a potential conflict before it arises.