The claimant and the defendant were sisters, the daughters of Agni Iacovou (the testatrix). By her will dated 7 August 2012 (the will), made shortly before her death two days later, the testatrix gave her entire net residuary estate to the claimant whom she appointed to be her executrix. The claimant issued proceedings on 18 June 2014 seeking an order that the court pronounce for the will in solemn form. The defendant defended the claim on the basis that the will had been procured by fraudulent calumny – that the claimant had poisoned the mind of the testatrix by casting untruthful aspersions about the defendant, knowing that they were false, and causing the testatrix to make no provision for the defendant in the will. The defendant counterclaimed for a declaration that the will was invalid and that the testatrix had therefore died intestate.
Mr Recorder Lawrence Cohen QC tried the claim over a period of ten days during which he made findings of fact that it was always the testatrix’s intention to ensure an equal distribution of her estate between her daughters but that, due to anger being felt at a transfer of bank accounts from the joint names of the mother and one daughter into the joint names of the mother and the other daughter, the claimant represented to the testatrix that the defendant had ‘helped herself to a substantial amount of assets’ and the testatrix mistakenly believed that the exclusion of the defendant from her will would have the effect of allowing a more even distribution of assets between her daughters. The claimant, whose evidence was found to be dishonest and manipulative, accompanied her mother to a meeting with the will writer and failed to correct a false representation that the accounts were in the defendant’s name rather than in the joint names of the mother and both daughters. The recorder concluded that the defendant had established that the claimant had committed a fraudulent calumny with the result that the testatrix had left everything to the claimant and nothing to the defendant. Consequently, on 10 February 2017, the recorder pronounced against the force and validity of the will and declared it invalid on the ground that it had been procured by the fraudulent calumny of the defendant committed by the claimant and that the testatrix had therefore died intestate. The claimant applied for permission to appeal against the order.
Held (dismissing the application):
As to grounds of appeal that the defendant had advanced a case of fraudulent calumny and led evidence beyond her pleaded case, there was no doubt that the defence and counterclaim contained a clear allegation that the will had been obtained by fraudulent calumny and the pleading of dishonesty had been sufficiently particularised. The recorder was in no way at fault in making the findings of fact which he did, and the defendant had not failed to prove the particulars which she had pleaded.
As to grounds of appeal that the recorder had made findings which were not supported by the evidence, this had been explored during oral argument and was wholly unpersuasive. In view of findings of fact in other respects, it was plain that the testatrix had believed that the defendant had done her a very great wrong; that she had stolen the money, and it was plain that the source of this belief was the claimant. The recorder’s judgment showed that he had taken immense care over the evidence and the detailed expression of his findings, and he was entitled to come to the conclusion that the claimant was dishonest and had carried out a fraudulent calumny.
As to grounds of appeal that the relevant legal principles had not been applied, these had not been in dispute at the trial and the decision in Re Hayward – that the false representation must be made for the purpose of inducing an alteration of testamentary dispositions – was only released just before closing submissions to the recorder and does not appear to have been cited. While it was correct that the recorder had not made a specific finding that the claimant’s purpose was to induce her mother to make a will which was adverse to the defendant and favourable to the claimant, the pleadings had set out the relevant test for fraudulent calumny and, as so pleaded, did not require a finding as to the claimant’s purpose. This had only arisen during the course of oral argument and, if it were necessary to decide the point, the general rule in the tort of deceit was that the representor must intend that the representee should rely on the representation. There was a rebuttable presumption of fact that the representor did so intend, but it was not necessary to show that the representor intended the representee to act on the representation in the precise way in which she did act. If those principles were applied here, then the claimant would be presumed to have had the intention that her mother should rely on her representations. It would not be necessary to show that the claimant had the specific intention of persuading her mother to change her testamentary intentions. The test in earlier caselaw focused on the effect of fraud rather than the purpose of the fraudster.
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 and the right response would be to refuse permission. The question for the court was one of causation or inducement, which was a matter of fact for the recorder, and he made a clear finding that the claimant’s fraud had induced her mother to change her testamentary intentions. The evidence in support of that finding was very clear and cogent. Whether the grounds were considered individually or collectively, the claimant did not have a real prospect of success on appeal and therefore permission to appeal should be refused.
Obiter dicta: there was 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 was a stricter rule in the case of wills which requires the challenger to show that fraud was practised for the specific purpose of inducing the testator to change their testamentary intentions. The formulation (distinguishing Re Haywood) that the will was made in the terms in which it was only because of fraudulent calumny may well have been appropriate on the facts of that case but should not be regarded in this case as a correct statement of the relevant test.JUDGMENT MR JUSTICE MORGAN:  This is an application by Mrs Niki Christodoulides for permission to appeal against the order made by Mr Recorder Lawrence Cohen QC sitting in the County Court at Central London on 10 February 2017. On 8 May 2017, Asplin J ordered that the court would consider the application for permission …