The Courts have long made it clear that they will do their utmost to preserve testamentary freedom and that it should take a lot for a Court to interfere with the expressed wishes of someone who has made a Will.
Specific grounds do exist for challenging the validity of a Will, however, and forgery and fraud are two of those limited grounds.
Allegations of forgery in Wills are not allegations that should be made lightly. Where forgery is alleged, the burden of proving the Will is genuine lies with the person who wishes to rely on the Will and whilst the standard of proof required is the civil “on the balance of probabilities” test rather than the higher “beyond a reasonable doubt” criminal test, the evidential hurdle is very high indeed.
It is usually the case that a handwriting expert may be called to give evidence – often with each side having their own expert. This of itself does not resolve the issue – in the 2015 case of Abdul Sattar v (1) Abdul Salam (2) Saber Sharif (2015), the evidence of the handwriting experts was inconclusive in determining whether the Will of the late Hazerra Khalick. Her 2010 Will left her entire Estate to her brother, living in the UK. A previous Will had divided her Estate equally between both of her brothers (the other living in New York). An allegation was made that the 2010 Will had not been signed by Hazerra and that her signature had been forged after her death.
Despite a finding by the Court that the circumstances in which the 2010 Will came into being were suspicious, the Court determined that there was insufficient evidence to prove forgery and allowed the 2010 Will to stand.
In Watts v Watts (2014) the Defendants’ handwriting expert was described by the Court as a “graphologist with no scientific training''. The daughter, however, relied on evidence from an expert the Judge referred to as a well-known and respected forensic document examiner, who found strong positive evidence that the Deceased did not sign the signature on the 2011 Will she was challenging on the grounds of forgery. Ultimately the Court found forgery was proven and the Will was declared invalid.
In August of this year the Court considered an allegation of forgery in Rainey v Weller. Brenda Weller executed a Will dated 9 February 2018 which was drafted by Austin Ryder Solicitors who also prepared an LPA for her at the same time. That Will appointed her niece, Ann, as Executor of the Will and left the entirety of her Estate to Ann.
Just a month later, on 5 March 2018, a second Will was purportedly executed. This time it was prepared at home and appointed one of Mrs Weller’s three children, Paul, as Executor leaving the Estate to three of her grandchildren – Paul’s children James and Arry and her daughter Toni’s eldest child Francesca. Paul and Toni witnessed the Will.
When Mrs Weller was admitted to hospital in November 2018 she asked Ann to collect “the suitcase” from under her bed but not to tell her sons about it. The suitcase was opened following Mrs Weller’s death on 24th November 2018 and found to contain 5 sealed envelopes, addressed to her daughter Toni, her grandchildren Francesca, James and Arry, and also Olivia, daughter of Francesca. Each envelope contained £1,000 in cash. There was some jewellery for two named beneficiaries, Francesca and Olivia, and a copy of the February Will which Ann had been unaware of until that time.
Paul admitted the March 2018 Will to Probate and Ann issued proceedings on the basis of forgery, having obtained expert evidence from a handwriting specialist that the “signature” on the March 2018 Will was not in keeping with other specimen signatures provided for comparison.
The Court reminded itself of the comments of His Honour Judge Hodge QC in Face v Cunningham (2020) that
"…where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will, as part of the formal requirements of proving that the will was duly executed by the testator and was duly witnessed."
In this particular case the Court found that in fact the March 2018 Will had been forged and – further – that Paul had subsequently endeavoured to provide the handwriting experts with forged signatures for comparison by signing bank cards his mother had had in her home but not signed herself. The Court also noted that Paul had failed to provide any meta-data from his computer to show when the Will he alleged to be valid had been drafted by him for his mother.
Other factors taken into account by the Court included a photograph taken on an iPhone though a query was raised as to whether that model of iPhone was available at the date the photograph was allegedly taken and the actions of Mrs Weller in paying for a Will (and appointing Ann as her Attorney under an LPA at the same time) and in putting together “the suitcase” to ensure certain gifts for certain family members.
Challenges to the validity of a Will on the basis of forgery are incredibly fact-sensitive and the extent of proof the Court will require is very high indeed. Forgery can be a fairly easy allegation to bandy about but care should be taken if a claim is actually considered.
In such cases it is essential to collate as much clear evidence of forgery as possible and to instruct an expert who will command the respect of the Court if the matter goes to trial – a bad expert can lose a good case.
“Our expert team should be the first port of call if you have concerns about the validity of a Will for any reason” says Jennifer Laskey, a Director at Howes Percival and a specialist in Contentious Trusts and Probate litigation. “Particularly where forgery is alleged, an early discussion about the circumstances in which the Will was made and the evidence that might be available to support any allegations made it imperative. Sometimes evidence can be gathered from a variety of sources at that early stage which avoids the need for a trial and puts the other party in a no-win situation.
Forgery is particularly hard to prove but such claims do succeed. Talking to a specialist lawyer as soon as you have concerns really can make all the difference.”
For more information contact Jennifer Laskey at [javascript protected email address] or on 07855 288561.
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