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Fraudulent Calumny - Challenging Wills and Poisoned Minds

on Thursday, 22 February 2018.

As legal advisors, we routinely encourage people to make a Will to ensure their assets will pass as they want on death.

However, as the spotlight has recently shone on claims against estates and in the wake of headline-grabbing cases like Ilott v Blue Cross, we are often asked: "What is the point of making a Will, if that Will can be challenged after my death?".

A straightforward question, which yields a complex answer. Will challenges are legitimate claims as long as they are founded upon established legal grounds. But that does not mean that they are easy to win, and they must be proved by evidence of fact.

One form of legally-established Will challenge, featuring of late in the courts, sounds as if it's come straight from the pages of a Dickens novel. Fraudulent calumny cases are well established, but what does fraudulent calumny mean?

What Is Fraudulent Calumny?

Calumny comes from the French word 'calomnie' and broadly means deception.

Add fraud, the meaning of which we are all familiar with, and a rough and ready translation can serve as: 'deliberate deception'.

The courts, in the case of Re Edwards in 2007, gave a wonderfully descriptive definition of what a Will challenge founded on fraudulent calumny looks like, saying:

"The basic idea is that 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 his character, then the will is liable to be set aside”.

An Example

Peter plans to include his two sons, John and David, in his Will. John, however, succeeds in poisoning his father's mind against David by reference to false facts or events. As a result, David is excluded from Peter's Will. In this case, David is likely to be successful in challenging Peter's Will on the grounds of fraudulent calumny.

A Recent Case in the Courts

Last year the case of Christodoulides v Marcou was heard, involving a Cypriot family and two sisters who fell out over their mother's Will. One of the sisters, Niki, was found by the court to have deliberately poisoned her mother's mind against her sister, Andre, in a number of ways. Niki's actions constituted a campaign of deception, most notably in that Niki persuaded her mother that Andre had taken large sums of money from her mother's bank account.

As a result, the mother excluded Andre from her Will, where she had previously intended to include her.

The court ruled that Niki had deliberately deceived her mother and Andre succeeded in her challenge to her mother's Will.

What did this mean for Andre? The mother's last Will was set aside, (declared invalid) and as there were no former valid Wills, the mother's estate was divided up between Niki and Andre equally, in line with the statutory intestacy rules which govern estates where no Will exists.

The Outcome of Successful Cases

You should always examine carefully what will be achieved in bringing any form of Will challenge (not just those brought in fraudulent calumny) before embarking upon one. The question must always be asked: what result will a successful challenge produce? This will depend upon whether former Wills existed and what their provisions were.

If you believe that a Will has been affected as a result of deliberate deception, or you have other concerns about the contents of a Will, it is essential to seek specialist advice to assess your prospects of success.

For specialist advice on making or updating a will please contact Michelle Rose in our Private Client team on 0117 314 5246.

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