Panayiotis and Agni Iacovou were hard-working Greek Cypriots who, in 1964, when they were in their early 30s, left their native country to make a new life in the UK with their two young daughters, Andre and Niki. Pani became a successful businessman, accumulating a number of properties, companies and investments in the UK and Cyprus. 

When he and his wife retired to Cyprus in 2003, their worldwide assets were of significant value. In their retirement years, they generously gifted many of their UK property interests to their two daughters, including a half share in the family home in Barnet. Pani died in September 2011, by which time Agni was in relatively poor health herself, dividing her time between Cyprus, where Andre had become resident, and the UK, where Niki lived.

Agni had never shown the slightest interest in making a will; she had always wanted her daughters to inherit her estate equally and therefore considered a will unnecessary. In the 10 months or so between her husband’s death and her own death in August 2012, however, a profound change had occurred in Agni’s thinking. She came to believe, quite wrongly, that Andre had stolen €500,000 from her Cyprus bank accounts. This led her, on 7 August 2012, two days before she died, to execute a will leaving the entirety of her substantial estate to Niki. 

In fact, Andre had not taken a single euro of her mother’s money, although she had assisted her mother to move the €500,000 into several different accounts operable only on the joint mandate of herself and her mother. Niki was added soon afterwards. This had been done for Agni’s protection because of the possibility that in fact it was Niki who would misuse her mother’s money.

Following a series of revelations about Niki’s secret attempts to deal single-handedly with the administration of Pani’s estate in Cyprus, it became clear to Andre that Niki had been instrumental in procuring Agni’s otherwise inexplicable will. A probate claim ensued in which Andre counterclaimed that the will had been procured by the undue influence, specifically the fraudulent calumny, of Niki. She claimed that Niki had poisoned her mother’s mind by telling lies about her, in particular that she had stolen her mother’s money in Cyprus, as a result of which Agni made a will leaving everything to Niki. Niki denied that she had induced her mother’s false belief, claiming that Agni had disinherited Andre for other reasons.

In a comprehensive judgment following eight days of evidence, the trial judge, Mr Recorder Lawrence Cohen QC, held that Niki had committed fraudulent calumny. He gave a detailed analysis of Niki’s behaviour over a period of many months, showing how he considered she had gradually been able to poison her mother’s mind in both England and Cyprus. He therefore set the will aside. The judge concluded that Niki was ‘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’. 

Niki sought permission to appeal. One of the key issues was whether the trial judge had applied the correct legal principles for establishing fraudulent calumny. It had been common ground at trial that Lewison J’s summary of the constituent elements of fraudulent calumny, as set out in Re Edwards (Deceased), Edwards v Edwards [2007] WTLR 1387, represented a correct statement of the law. In particular: ‘… if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside… The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false… if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone’. 

Before Morgan J, however, Niki argued that the trial judge failed to apply the correct legal principles, in particular as set out in Re Hayward [2017] 4 WLR 32, a case which had been heard at about the same time. The deputy judge in that case had postulated a six-stage test for calumny as an aid to applying the principles in Re Edwards. Niki sought to derive from Re Hayward the propositions that it was additionally necessary for the trial judge to have found, in order for calumny to be established, that (i) when Niki made her false representations she must be shown to have had the purpose of inducing Agni to disinherit Andre; and (ii) Agni’s will was made only because of the fraudulent calumny.

In refusing permission to appeal, Morgan J held that the new point now being taken as to Niki’s purpose was not taken at trial and that the established approach of an appeal court is not to allow a point of this kind to be taken for the first time on appeal. After reviewing the older cases, however, some of which did make findings about the fraudster’s purpose, he additionally stated: ‘In these circumstances, there is obviously scope for argument as to whether when considering a challenge to a will based on fraudulent calumny, the court should apply the usual rule for the tort of deceit, or whether there is a stricter rule in the case of wills, which requires the challenger to show that the fraud was practised for the specific purpose of inducing the testator to change his testamentary intentions. If this point had been raised before the recorder and the evidence had been called and examined in relation to Niki’s purpose, and if the recorder’s decision depended on a ruling that it was not necessary to show that Niki had the specific purpose of inducing her mother to change her testamentary intentions, then it would be appropriate to grant permission to appeal such a ruling.’ 

As to the argument that the calumny had to be the only causal factor, Morgan J clarified that this is not a correct statement of the relevant test: ‘The question for the court is one of causation or inducement. The calumny must induce the change in the testator’s intentions. The challenger must prove that on the balance of probabilities. If it is possible that the calumny did induce the change, but the court is not persuaded on the balance of probabilities that it did induce the change, the challenge will fail. If there are other possibilities or other explanations and those other explanations persuade the court to find on the balance of probabilities that the calumny did not induce the change, the claim will fail. Conversely, although the court is given other possible explanations, if the court is nonetheless satisfied that on the balance of probabilities that the calumny did induce the will, then the claim succeeds…the use of the word “only” should not be understood as requiring a finding that there must have been no other reason operating in conjunction with the effect of the fraud for the testator to change his or her intentions.’ 

It is possible that Morgan J’s observations on the ‘purpose’ argument might in future be seen as an invitation by some to argue that purpose should be an additional element in the test for establishing fraudulent calumny. It is, however, extremely difficult to see the justification for the introduction of such a subjective component into the test merely because a specific type of fraudulent misrepresentation has occurred. The true harm surely lies in the causative effect of the calumny not in the particular purpose or motive of the fraudster. As Herodotus said a long time ago:  ‘A man calumniated is doubly injured; first by him who utters the calumny, and then by him who believes it.’ 

Kate Selway appeared for the successful party Androulla Marcou in the decision on fraudulent calumny in Christodoulides v Marcou [2017] EWHC 2632 (Ch). She is a member of the attorney general’s A Panel of Counsel, specialising in contentious trust, probate and property work

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