22 October 2019 - Article
In Christodoulides v Marcou, the latest probate dispute featuring the in vogue fraudulent calumny plea, the judge refused an appeal from the claimant daughter, finding her to be a 'thoroughly dishonest and manipulative individual'.
Fraudulent Calumny is the 'poisoning' of a testator's mind against another, who would otherwise be a natural beneficiary of the testator's estate, by casting dishonest aspersions on his character. The person accused must either have known that the aspersions were false or not cared whether they were true or false.
In previous cases, the courts have found a 'drip drip approach' to be highly effective in sapping a testator's will.
In Christodoulides v Marcou, the claimant daughter, Niki, issued proceedings for a declaration in favour of her mother's will which left her the entire estate, excluding Agni's other daughter, Andre.
Andre counterclaimed that Niki had procured their mother's will by fraudulent calumny which, if successful, would mean that the will was invalid and Agni died intestate.
First instance decision
Andre gave evidence accusing Niki of telling Agni various lies about Andre. For example, that Andre had taken £500,000 from Agni's bank account. In fact Andre had transferred it from an account in Niki and Agni's names to Andre and Agni's names.
The professional will writer also gave evidence that Agni believed that excluding Andre 'would allow a more even distribution of her assets to both daughters' as Andre had 'helped herself to a substantial amount of assets already and that Niki had not'.
The judge at first instance found that Niki had made 'fraudulent misrepresentations' and that these had 'poisoned Agni's mind to exclude Andre'. He found Niki to be a 'thoroughly dishonest and manipulative individual to whom integrity and truth are less important than achieving what she wants'.
Ultimately, he declared the will invalid on the ground of fraudulent calumny by Niki.
Niki appealed the first instance decision saying the judge had:
1. allowed Andre to advance a position during the hearing which went beyond her pleaded case;
2. allowed his assessment of her (dis)honesty to cloud his judgment; and
3. not applied the correct test for fraudulent calumny.
On the first ground, the appeal judge did not find the first instance judge at fault for allowing Andre to expand on her evidence at the hearing. The first instance judge had asked the parties to submit a list of facts for him to decide and that is what he did. Niki engaged with the process and could not now contest it.
On the second ground, Niki said she had 'accurately and honestly' told her mother that Andre had withdrawn money from Agni's bank account and, insofar as the Recorder found that Agni believed that Andre had 'stolen' her money, that belief had nothing to do with Niki. The appeal judge was not persuaded and found no sign of the first instance judge having allowed his findings as to Niki's dishonesty to cloud his judgment.
On the third ground, Niki submitted that it is a requirement of fraudulent calumny for Andre to show that:
a) Niki made knowingly false representation to Agni about Andre's character 'for the purpose of inducing' Agni to change her will in a way adverse to Andre, and
b) Agni made her will 'only because of the fraudulent calumny'.
Unfortunately, the appeal judge did not decide whether 'purpose' is a requirement of fraudulent calumny.
Niki first raised this argument during at the appeal hearing. At first instance she set out the test as she saw it and did not include a requirement for the representations to have been made for the purpose of inducing Agni to change her will. The appeal judge held that it was not for him to allow a point of this kind to be made for the first time on appeal.
However, he did say, if 'purpose' is a requirement of the test, he considered there to be sufficient evidence to demonstrate that it was Niki's purpose to change Agni's will in an adverse way to Andre.
The appeal judge held that the word 'only' in the 2017 judgment of Re Hayward does not change the test for fraudulent calumny to require there to have been 'no other reason operating in conjunction with the effect of the fraud'. He confirmed that the relevant question is whether, on the balance of probabilities (which is the threshold in civil cases), the representations induced the testator to change their will.
The appeal judge found Niki's appeal to have 'no real prospect of success' in disturbing the first instance judge's decision. Therefore, he refused permission to appeal.
Procedurally, the case highlights the importance of having clear arguments from the beginning.
It leaves open the question of whether 'purpose' should be a requirement of the test for fraudulent calumny. As matters stands, it is not, but we'll see if another court changes the position in the future…