Case law: Will set aside for 'fraudulent calumny' as daughter poisoned mother's mind against her sister

Potential beneficiaries under a Will should avoid deliberately criticising or 'casting aspersions' on the Will-maker's 'natural beneficiaries' with a view to getting them excluded from the Will, or risk any subsequent Will being declared invalid for 'fraudulent calumny'.

A Will can be set aside if a false representation is made to the testator about an individual's character, with a view to inducing the testator to exclude that individual from their Will. This is called 'fraudulent calumny'. There is no requirement for undue pressure or threats - the emphasis is on the seriousness of the false representations made.

The elements of fraudulent calumny are:

  • The offender has purposely 'poisoned' the testator's mind against someone by 'casting dishonest aspersions' against them, to get them excluded from the Will.
  • The offender either knows what they are saying is untrue, or does not care if it is true or not. So an honest belief their statements are true is a defence to fraudulent calumny.
  • The victim would otherwise be a 'natural beneficiary' of the testator.
  • There is no other explanation for the failure of the victim to inherit.

The burden of proof is high and successful fraudulent calumny claims are rare. However, in a recent case the testator's daughter told her mother (the testator) that her other daughter had been stealing her assets and helping herself to the mother's property. This, the court found, was fraudulent representation and poisoned the testator's mind against her other daughter.

The court therefore, decided there had been fraudulent calumny.

Operative date

  • Now

Recommendation

  • Potential beneficiaries under a Will should avoid deliberately criticising or 'casting aspersions' on the Will-maker's 'natural beneficiaries' with a view to getting them excluded from the Will - or risk any subsequent will being declared invalid because of their fraudulent calumny

Case ref: Marcou v Christodoulides [2017] Claim No. A10CL026

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