The concept of fraudulent calumny has just been recognised in New Zealand for the first time in Lowe v Ngan [2026] NZHC 519.
At its core, fraudulent calumny involves the deliberate poisoning of the testator’s mind with false information, either knowing or not caring whether the information is true or false.
Background facts
The case concerned the estate of Tengor Ngan who was born in China in 1929. In 1941, his family fled the Japanese invasion and migrated to Wellington, New Zealand where he remained until his death in 2024.
Tengor had seven half-siblings. He chose one of them, Peter, to look after his six flats in return for receiving half the profits.
Tengor’s original will required the flats to be held for six years, after which they could be sold with the proceeds split between Peter, and sisters Helen and Jeanne and the children of another sister.
In the 17 years prior to Tengor’s death, Peter and his wife, Rose, had looked after Tengor’s six flats, undertaking maintenance and collecting rent, half of which would go to Tengor.
In 2020, frictions developed between Peter and Helen over how the flats should be managed and how Tengor’s estate should be split when he died.
Helen believed Peter was taking more than he was entitled to from the 50/50 arrangement he had with Tengor, and she convinced Tengor that he was being defrauded. Tengor then changed his will, disinheriting Peter of the two flats he intended to give him.
After Tengor died, his executor applied for probate over his last known will. Peter opposed the application. He claimed Helen had made false claims about his taking Tengor’s money and said this had led to him being removed from the will.
The matter proceeded to a four day trial in November last year, with the decision released last month.
High Court’s decision
The High Court was required to consider whether the doctrine of fraudulent calumny should be adopted into New Zealand law.
In reliance of two academic articles, the High Court rejected the approach taken in some UK decisions that had treated fraudulent calumny being a more insidious form of undue influence. Instead, the High Court found that fraudulent calumny is really a species of fraud.
However, rather than adopting the test that has been applied in the UK cases (which have been subject to some academic criticism), Justice La Hood found that the elements of fraudulent calumny in New Zealand are:
- a false representation was made to a testator.
- the false representation was made by a person who knew it to be untrue or was reckless as to its truth.
- the false representation was made with the intention that the testator act on it.
- the testator acted in reliance on the representation.
- the claimant suffered loss as a result of the testator’s reliance on the representation.
In this regard, His Honour found that the elements of fraudulent calumny mirror the elements of a common law claim in deceit.
His Honour then considered the first two elements in turn:
- did Helen make false representations to Tengor that Peter had defrauded him?
- when making the false representations, did Helen know they were untrue, or was she reckless as to their truth?
Issue (a): Did Helen make false representations to Tengor that Peter had defrauded him?
His Honour found that Helen made representations to Tengor that Peter had defrauded him by taking excess sums of money over a lengthy period. There was extensive evidence of these communications, including in documents that Helen had prepared for Tengor to take to his lawyer on 4 October 2021, a few weeks before the final will was executed.
Although His Honour found that the way Peter and Rose operated Tengor’s account under the EPOA was unconventional (by taking their 50 per cent share as drawings, without any proper accounting), it was an informal arrangement between two brothers that had otherwise operated well for many years.
Helen’s claims that there was widespread and ongoing fraud were not made out. The representations were accordingly false.
Issue (b): When making the false representations, did Helen know they were untrue, or was she reckless as to their truth?
Next, the Court had to decide whether Helen was reckless about the truth of the representations. This element required proof that Helen lacked a genuine belief that her representations were true, as Helen could not be reckless about the truth of her representations if she had an actual belief in their truth.
As it was an allegation of fraud, the Court required ‘clear and cogent evidence’ of Helen’s lack of belief in the truth of the representations.
Having carefully scrutinised all of the evidence, His Honour found that Helen had formed a view about the supposed ‘fraud’ based on a cursory assessment of the limited information that was available to her. Once she had formed that view, she would not depart from it, even when faced with evidence to the contrary.
At the same time, His Honour found that this was not a situation where there was no support for Helen’s mistaken, yet genuinely held, views. Tengor’s lawyer had also reached a similar view upon reviewing the bank statements and had shared those concerns with Helen and Tengor.
Helen’s concerns were also exacerbated by Peter’s unconventional management of the accounts and his decision to unilaterally take significant sums of money from the account (after it was agreed that an external accountant would be appointed).
Since there was no ‘clear and cogent evidence’ that Helen knew or was reckless as to the truthfulness of her representations, the claim in fraudulent calumny could not succeed.
It was therefore, not, necessary to determine the remaining three elements of the cause of action.
There are no known cases of fraudulent calumny in Australia yet, although the doctrine was recently mentioned in passing in a summary dismissal application in Re the estate of Iovenitti [2026] VSC 106.
It is only a matter of time before Australia has its first fraudulent calumny case.
