Poisonous behaviour – how a Will was declared invalid using a rarely used and rarely successful challenge

Fraudulent calumny. It's not a phrase many people have heard of and is in fact so rare that even lawyers have to dust off their old text books when it comes up in legal circles.

But a recent court case has confirmed that a Will can be set aside for this very reason after a businesswoman was condemned by a judge for lying to her dying mother so that her sister would be cut out of their inheritance.

So, what on earth is fraudulent calumny?

Basically, if it can be proved that one person has poisoned the mind of someone making a Will against another person who would otherwise be a natural beneficiary, and this is done by casting false or dishonest representations on their character, then a Will may be set aside.

For example, one brother tells his widowed dad, who is preparing to make a Will, not to leave anything to his other brother because "he just wants to put you in a care home so he can get your money quicker".

If that statement was false, and the person making the Will did indeed remove the other brother as a beneficiary, and there is evidence that this occurred, then the Will could be set aside and have no validity - even if, in all other respects, the Will would have been valid. For example, if it was properly signed and witnessed and if the person making the Will had full testamentary capacity.

How did fraudulent calumny affect the case of Christodoulides v Marcou?

In this case, the judge ruled that Niki Christodoulides, 53, had persuaded her mother, Agni lacovou to change her Will having "poisoned her mind" with claims that her sister Androulla Marcou, 57, had stolen money from her. Mrs lacovou, originally from Cyprus, changed her Will two days before she died leaving the entirety of her substantial estate to Niki.

Following eight days of evidence, the trial judge, Mr Recorder Lawrence Cohen QC, held that Niki had committed fraudulent calumny giving a detailed analysis of her behaviour over many months, showing how he considered she had gradually been able to poison her mother's mind in both England and Cyprus.

He referred to her as 'a thoroughly dishonest and manipulative individual to whom integrity and truth are less important than achieving what she wants, even when she knows she is not entitled to it'.

The Will was declared invalid meaning that Mrs lacovou's estate would be distributed in accordance with any previous valid Will. In this instance, she did not have an earlier Will so her estate would be distributed in line with intestacy rules equally between the two sisters.

Niki Christodoulides' application to appeal against the judge's ruling was dismissed. She had told the court her mother had always intended to divide her fortune equally and that she was not responsible for her belief that her sister had stolen her money.

If you suspect fraudulent calumny

It seems that allegations of fraudulent calumny could be becoming more common and taking legal advice early on is recommended if you suspect it, as it is a complicated area of the law.

You could also keep a diary with details of potential witnesses (especially those who are not interested in the outcome of any decision about the testator's Will) and a clear record of behaviours which give rise to concern. There's also no harm in trying to talk to the Testator about any concerns especially if there is a suspicion that the Testator is being lied to by others.

For more information please contact Wards Solicitors' Probate Disputes team