Contesting a Will Article
18 December, 2017
The recent case of Christodoulides v Marcou gives a rare example of a successful challenge to the validity of a will on the basis of fraudulent calumny.
Fraudulent calumny involves a person making false representations about another person, to a testator, with a view to inducing the testator to preclude the other from the benefits under their will. In these cases, where fraud is proven, the will be held to be invalid.
In the case of Re Edwards, Edwards v Edwards , Lewison J said the following: -
"… if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on this character, then the will is liable to be set aside…"
This case set out what a claimant will need to show in order to prove fraudulent calumny i.e. there had been a poisoning of the mind of the testator; that person knew that the statements being made were false; the person against whom the statements were made would be a 'natural beneficiary' of the testator's estate; and that there is no other explanation for the inheritance.
The recent case of Christodoulides v Marcou , involved two sisters. The sisters' mother, Agni Iacovou (Agni) had never shown any interest in making a will because she had always wanted her daughters, Niki Christodoulides (Niki) and Androulla Marcou (Andre), to inherit her estate equally.
However, two days before Agni's death, she executed a will leaving her full estate to Niki.
As it transpired, Niki had lied to her mother and told her that Andre had stolen €500,000 from Agni's Cyprus bank accounts. This is what had prompted Agni to execute a will leaving her full estate to Niki.
Andre subsequently claimed that the will was invalid on the basis that it had been drawn up and executed as a result of the undue influence, and fraudulent calumny, of her sister Niki.
Niki denied that she had made representations about Andre (at least not any which she did not honestly believe were true), to Agni, in order to induce her to execute a will leaving the entire estate to Niki. Niki said that Agni had disinherited Andre for other reasons.
Following a lengthy trial, Mr Recorder Lawrence Cohen QC held that Niki had committed fraudulent calumny and concluded that Niki was "a thoroughly dishonest and manipulative individual to whom integrity and truth are less important than achieving what she wasn't, even when she knows she is not entitled to it."
The High Court confirmed that a person challenging a will by alleging that another person has poisoned a testator's mind by making false representations about their character, must show, on the balance of probabilities that the calumny caused the testator to change their intentions. The test, however, did not require the court to conclude that there must have been no other reason alongside the fraud for the testator to change their intentions. Even if there were other possible explanations for a testator to change their mind about their will, if the court is satisfied that the calumny did induce the will, then the claim would succeed.