Christodoulides v Marcou

Fraudulent calumny requires proof that a false representation about a potential beneficiary was made knowingly or recklessly, and that it induced the testator to change testamentary intentions. The relevant question is causation on the balance of probabilities. The word “only” does not require proof that the fraud was the sole reason for the change; other reasons may operate alongside it.

A pleading need not identify every detail of a calumny which was made to a deceased person, provided the allegation is fairly stated and the opposing party suffers no prejudice.

The claimant sought permission to appeal, and pursued the proposed appeal, against a County Court decision declaring her mother’s will invalid. The Recorder found that the claimant had made fraudulent misrepresentations to her mother about the defendant, causing the mother to leave the defendant no provision.

The proposed grounds challenged the pleading, factual findings, the legal test for fraudulent calumny, causation, and the failure to consider alternative explanations for the will. The central issues were whether the claim had been adequately pleaded, whether the Recorder had applied the correct principles, and whether the findings established that the calumny induced the testamentary change.

1. Permission and disposition. The claimant had no real prospect of success on any ground. Permission to appeal was refused.
2. Pleading. The allegation of fraudulent calumny was sufficiently particularised. Such allegations cannot usually be pleaded with the same precision as an ordinary commercial fraud because the representations are made to the testator, who may be deceased. The claimant had suffered no prejudice. The evidence had been fully investigated at trial, and no objection had been made before it was called.
3. Fraudulent calumny. The legal principles stated in Re Edwards [2007] WTLR 1387 were applicable. The claimant had made false representations about the defendant’s character, knowing them to be false or being reckless as to their truth. The Recorder was entitled to find that the representations poisoned the testator’s mind against the defendant.
4. Purpose. The court noted an unresolved issue whether the claimant must specifically have intended to induce a change in the will, or whether it is sufficient that she intended the testator to rely on the representations. That issue had not been raised at trial. It was therefore inappropriate to entertain it for the first time on appeal, particularly as there was a strong case that the claimant had possessed the relevant purpose.
5. Causation. The requirement that the will be made “only because” of the calumny should not be treated as requiring the fraud to be the sole operative reason. The proper question was whether the calumny induced the change in testamentary intentions on the balance of probabilities. The Recorder had made a clear and cogent finding that it did so. He was not required separately to analyse every alternative explanation.

• High Court (Chancery Division): The application for permission to appeal, with the substantive appeal to follow if permission were granted, was refused.
• County Court at Central London: On 10 February 2017, the Recorder pronounced against the force and validity of the will and declared that the deceased had died intestate because the will had been procured by fraudulent calumny.