Fraudulent Calumny in Contemporary Estates Practice

As estate and trust practitioners, we are increasingly seeing families where an older adult is isolated from loved ones by a child or spouse, often for reasons that include pecuniary advantage to the isolating party. This isolation can cause significant emotional distress during the older adult’s lifetime and may ultimately result in a will that benefits the isolating party. In such cases, counsel must consider whether fraudulent calumny has occurred and whether it should be pleaded. 

Fraudulent calumny arises where a wrongdoer, often a family member, deliberately maligns another person’s reputation or character to a will-maker, which causes the will-maker to exclude that maligned person from their will, or to make a smaller provision for that maligned person than would otherwise be expected. 

As an example, a mother has two children—a son and a daughter. The son makes false statements to the mother about the daughter’s honesty and intentions, which the son either knows to be false or is reckless as to whether they are true or false. These dishonest aspersions on the daughter’s character poison the mother’s mind against the daughter. The mother then makes a will which either excludes the daughter or includes her, but with a gift smaller than would otherwise have been provided.

The British Columbia Law Institute considered fraudulent calumny in its 2022 “Undue Influence Recognition and Prevention: A Guide for Legal Practitioners”. It described fraudulent calumny as a type of testamentary fraud amounting to undue influence. John Poyser, in his text Capacity and Undue Influence¹, also uses the term testamentary fraud, and describes it thus:

Testamentary fraud is an effort to fool a person into believing a false state of affairs that is then instrumental in causing that person to make a testamentary gift that otherwise would not have been made. Testamentary fraud does not force a person to do something against his or her will. The person goes willingly, but is led by a program of falsehood and manipulation.

Fraudulent calumny and testamentary fraud are distinct from testamentary incapacity. The will-maker may well possess full testamentary capacity but, where the will is founded on false information intentionally provided by a wrongdoer, the court will set aside the will.

There is some academic as well as judicial debate as to how best to situate fraudulent calumny, whether as a distinct cause of action or as a category of generally fraudulent conduct amounting to undue influence. We have used the term “fraudulent calumny” because it is well-established in the United Kingdom. By pleading it as such in British Columbia, we are able to more directly rely on the UK jurisprudence.

The elements of fraudulent calumny are:

• The defendant made fraudulent statements about the plaintiff to the will-maker;
• The defendant knew the statements were false, or was reckless as to whether the statements were true or false; and
• As a result of the statements, the will-maker made a will that either increased the defendant’s entitlement or decreased the plaintiff’s entitlement.²

Of note is the requirement that the alleged wrongdoer must in fact be acting improperly. They must either know the statements to be false or be reckless as to whether or not the statements are true or false. If the alleged wrongdoer honestly believed the statements to be true, then the cause of action will not be established. 

As with undue influence claims, the person alleging the wrongdoing may have difficulty in proving the false statements were made. It is common for the statements to be made in private, without any third parties able to testify that these actions occurred. The claim will not be successful if:

• The plaintiff cannot prove the defendant made the statements;
• The defendant actually and reasonably believed the statements to be true;
• The will-maker held a mistaken belief about the plaintiff, but this belief was not the result of the defendant’s statements; or
• The court finds that the calumny did not induce the change in the will.³

Where a court finds that a will was procured through fraudulent calumny or otherwise refers to it as testamentary fraud, the will is set aside. The onus of proof rests with the person alleging fraudulent calumny, on the civil standard of balance of probabilities.⁴

Canadian courts have rarely considered fraudulent calumny claims, perhaps because the facts may give rise to other more common claims such as undue influence or lack of testamentary capacity. Nevertheless, practitioners ought to give consideration to a claim in fraudulent calumny when there is evidence of a deliberate poisoning of the testator’s mind leading to disinheritance.

1. 2nd ed. (Toronto: Thomson Reuters, 2019), p. 355.
2. Re Hayward, [2016] EWHC 3199 (Ch.), at para. 122.
3. Christodoulides v. Marcou, [2017] EWHC 2632 (Ch.) (“Marcou”), at paras. 28 & 59.
4. Marcou, at para. 15; Edwards v. Edwards, [2017] EWHC 1119 (Ch.), at para. 2.