Your sister (falsely) trash talks you to your mom. Mom then writes you out of her will.
“Fraudulent calumny!”, you scream.
Fraudulent calumny occurs where a person poisons the mind of a testator against another person who would otherwise be a natural beneficiary of the testator’s bounty by casting dishonest aspersions on his or her character.
The doctrine has been applied or considered in many UK decisions.
Fraudulent calumny is said to be a species of undue influence. However, rather than influence a testator to do something, the influencer influences a testator to NOT do something: leave a bequest to a certain party.
In order to establish fraudulent calumny, the person alleging fraudulent calumny must prove:
- That A made a false representation;
- To B, the testator;
- About C, a third person;
- For the purposes of inducing B to alter his or her testamentary dispositions;
- That A made the representations knowing them to be false, or reckless as to their truth; and
- That B’s will was made only because of the false representations.
See Kunicki& Anor v. Hayward, [2017] 4 WLR 32 at paragraph 122.
Like other undue influence, the test is a difficult one to pass.
In a recent UK decision, Rea v. Rea, [2019] WTLR 1231, the court rejected a claim of fraudulent calumny. The court held that the challengers did not establish that their sister poisoned their mother’s mind against them, by saying that the challengers had abandoned her. The court found that the mother felt, of her own volition, that she was abandoned. Thus, whether it was true or not, the mother made her own decision without anyone “poisoning her mind”; therefore without fraudulent calumny or undue influence.
For a more artistic depiction of fraudulent calumny, see Boticelli’s Calumny of Apelles. The painting has been described as follows:
On the right of it sits a man with very large ears, almost like those of Midas, extending his hand to Slander while she is still at some distance from him. Near him, on one side, stand two women—Ignorance and Suspicion. On the other side, Slander is coming up, a woman beautiful beyond measure, but full of malignant passion and excitement, evincing as she does fury and wrath by carrying in her left hand a blazing torch and with the other dragging by the hair a young man who stretches out his hands to heaven and calls the gods to witness his innocence. She is conducted by a pale ugly man who has piercing eye and looks as if he had wasted away in long illness; he represents envy. There are two women in attendance to Slander, one is Fraud and the other Conspiracy. They are followed by a woman dressed in deep mourning, with black clothes all in tatters—she is Repentance. At all events, she is turning back with tears in her eyes and casting a stealthy glance, full of shame, at Truth, who is slowly approaching.
In R. v. Muvunga, defence counsel tried to use the painting as a visual prop, to be referred to as an allegory about false accusations. The court rejected the bid. “While the painting is of great interest to art historians and other scholars, I find that it has no place in a modern Canadian criminal trial.”
Thanks for reading.