ICAEW.com works better with JavaScript enabled.

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'.

August 2017

This update was published in Legal Alert - August 2017

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

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

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

Copyright © Atom Content Marketing