Challenging a will – Fraudulent calumny or poisoning the mind
One argument occasionally used to dispute the validity of a will is a form of fraud, known as fraudulent calumny.
Fraudulent calumny occurs when a false representation is made about the character of an individual who could be expected to benefit from someone’s estate, the result being the disinheritance of that person. This is often referred to as ‘poisoning the mind’. Fraudulent calumny does not involve threats or undue pressure, as in cases of undue influence, and so is more subtle.
Often such allegations are made by one siblings against another following the death of a parent. One such recent case is that of Marcou v Christodoulides which pitched sisters Niki and Androulla (known as Andre) against each other following the death of their mother, Agni.
Shortly before her death Agni made a will leaving her entire estate to Niki. Andre alleged this was because Niki had poisoned their mother against her by telling her that Andre had taken, or helped herself to, around €500,000 of Agni’s money. Niki denied that she had made any false representations to her mother.
The lengthy judgment of the court demonstrates the importance of witness evidence in will dispute cases. The evidence of the professional who drafted Agni’s will was that she wished to benefit both of her daughters equally, which was consistent with the history of gifts made by Agni and her late husband during their lifetimes.
Having heard from a number of witnesses the judge determined that Niki was a “thoroughly dishonest and manipulative individual to whom integrity and truth are less important than achieving what she wants”.
The judge found that Agni’s mistaken belief that her will would effect a more even distribution of assets, considering what Andre had taken, was “induced by the fraudulent misrepresentations of Niki that Andre had stolen, helped herself or taken Agni’s money and run”. As a result, Agni’s will was declared invalid and her estate passed equally to Andre and Niki on intestacy (as she did not have any prior wills).
Cases of fraudulent calumny will fail if the person making the false representations genuinely believes them to be true. It must be that they either know, or do not care, that their aspersions are false. The burden of proof lies with the person alleging the fraudulent calumny, which is difficult in will dispute cases when the most important witness, the person who made the will, is not available to comment. Further, the force and strength of evidence required is heightened by the serious nature of the allegation, being one of fraud.
Specialist advice is essential in pursuing a will challenge on the basis of fraudulent calumny, or any other grounds.
Emma Saunders is a Senior Associate specialising in contentious probate matters, including will disputes, at Sintons. To speak to her please call 0191 226 3293, or email her at emma.saunders@sintons.co.uk.
