Fraudulent Calumny

Fraudulent calumny is a type of fraud relevant to inheritance disputes.

It is difficult to prove and that means such claims are rare and often other grounds for a Will validity challenge are the focus instead.

What is fraudulent calumny? Is it different to undue influence?

It is well known that undue influence may occur when a testator’s wishes are influenced and altered as a result of coercion. Fraudulent calumny differs:

• Undue influence – involves coercion, so a testator may not want to change their will or make certain provisions in their will, but they feel obliged to do so.  Their free will is overridden;
• Fraudulent calumny – usually involves the testator choosing to change or make their Will in a certain way following false accusations or representations being made to them by another beneficiary.

A claimant seeking to challenge a Will must prove on the balance of probabilities that the accusations induced the change in the testator’s intentions. If they succeed, the Will is invalid and  set aside.  On the other hand if someone genuinely believes what they are saying is true, or they did not intend for a testator to change their Will, it is unlikely to amount to fraudulent calumny.

Case Law – Successful Fraudulent Calumny Will Validity Challenge

The case of Christodoulides v Marcou [2017] is an example of an inheritance dispute involving allegations of fraudulent calumny that ultimately resulted in court declaration that the Will was invalid.

In the Christodoulides case the Testatrix came to believe, quite wrongly, that one of her daughters Androulla “Andre” had stolen €500,000 from her Cyprus bank accounts.  This led her to make a new Will just two days before she died leaving the entirety of her substantial estate to her other daughter Niki.  The court ultimately declared the Will invalid on grounds that Niki was guilty of fraudulent calumny

Fraudulent calumny involves one person poisoning a testator's mind by making dishonest aspersions about another person's character where the maligned person would, otherwise, be a natural beneficiary of the testator's bounty. If the fraud is shown the will is invalid.

The High Court confirmed that the person challenging a will on the basis of fraudulent calumny must show, on the balance of probabilities, that the calumny induced the testator to change their intentions. However, the test did not require the court to conclude that there must have been no other reason operating in conjunction with the fraud for the testator to change their intentions. If there were other possible explanations for the testator's change of mind, if the court was nonetheless satisfied that the calumny did induce the Will, then the claim would succeed.

Evidence

Successful claims are rare as fraudulent calumny is difficult to prove. The fraudulent allegation is often made behind closed doors and in the absence of witnesses. The testator is also no longer around to give evidence. As a result, many claimants will have insufficient evidence to establish their case.

Unsuccessful Allegations

Any allegation of fraud (including fraudulent calumny) is extremely serious and as a consequence such claims have a high burden of proof.  Additionally, if an allegation is pursued but ultimately unsuccessful then the unsuccessful claimant can expect to face significant adverse cost consequences.  The common misconception is that the costs of litigation will be paid by the estate. They are not.  Inheritance litigation should be pursued/defended with the same degree of caution as all litigation.