Challenging wills using Fraudulent calumny

A few months back, we looked at the issue of ‘fraudulent calumny’ – which is a kind of undue influence – and how it can be used to challenge a will. The recent case of Christodoulides v Marcou [2017] EWHC 2632 (Ch) is another opportunity to look at what fraudulent calumny involves.

The facts in Christodoulides v Marcou

This case involved a dispute between 2 sisters, Niki and Andre in relation to their mother’s will, made shortly before she died, and which left everything to Niki when her intention had always been to divide her estate between the sisters equally. Niki had joint control over her mother’s bank accounts for administrative convenience. In March 20120, 500,000 euros was transferred into an account in joint names of the mother and Andre. Following this action, which angered Niki greatly, the recorder found that Niki had made a series of representations to her mother designed to make her mother think badly of Andre. Niki also led the mother to believe that Andre had taken the 500,000 euros. As a result, the mother made a will a few days before she died leaving everything to Niki on the basis that it would even things out between the sisters

The decision – and application to appeal

The recorder decided that there had been a ‘fraudulent calumny’. He looked at the principles set out in Re Edwards, and considered that:

  1. Niki had made a false representation
  2. to her mother
  3. about Andre’s character
  4. knowing it to be untrue or being reckless as to its truth, and
  5. the Will was made only because of the fraudulent calumny.

On appeal, among other things, Niki argued that the recorder had not made a specific finding that what she was alleged to have done was “for the purpose of inducing [her mother] to alter [her] testamentary dispositions”.

The decision which refused Niki permission to appeal goes into some detail on this point. The judge agreed that the recorder had not made a specific finding of fact on the point of Niki’s purpose, but he felt that there was a very strong case that this was Niki’s purpose [para 49]. Going on, the judge explained that the recorder had not been asked to make a finding of fact on that point (despite him being given a list of 82 findings to make by the barristers involved in the case). On a technical matter, too, the judge said that this argument was only raised in court during the permission to appeal hearing, and had not been included in the written grounds of appeal.

Proving a will in solemn form

The case arose because Niki made an application to the court in the first place to have the will proved in solemn form. This is a procedure where the executor of a will can go to court for a declaration about the will before it is admitted to probate. Andre’s objection to the will was, of course, that it had come about through fraudulent calumny. In this case, the recorder found that fraudulent calumny was in play, and the will was invalid. As a result, the rules of intestacy applied. The judge who considered the application for leave to appeal did not think that there was any prospect of success for the appeal.

Evidence of fraudulent calumny

As with any claim that a will is invalid – whether because of undue influence, because of a lack of testamentary capacity, or lack of knowledge and approval, evidence is always problematic. The person who made the will is no longer available to give evidence. In this case, the recorder was able to make some very clear findings from the evidence about what had happened and Niki’s role in poisoning her mother’s mind against Andre.

If you’re concerned about the circumstances in which a will has been made, and think you have been left out of a will because someone else has persuaded the person making the will to do so, get in touch! We are specialist will dispute solicitors, and will talk you through your case and what a will dispute will involve. We can usually act on a no win no fee basis too, taking away some of the stress of legal fees.