Two recent decisions relating to forged wills have highlighted what evidence will be sufficient for a court to make a finding of forgery.

The decision of Face v Cunningham [2020] EWHC 3119 (Ch)

Mr Face died in October 2018 survived by 3 children and several grandchildren. One of the children claimed to have found a will dated September 2017 (the “2017 Will”). The original will was never located but the claimant claimed to have found a photocopy. The 2017 Will excluded Mr Face’s other children from any distribution of the estate and, instead, left the whole estate to the claimant (with some gifts to the grandchildren).

The defendants claimed that the 2017 Will was a forgery and their father had died intestate, meaning the estate should be distributed equally between the 3 children.

Whilst a forensic examiner was instructed, they found the evidence inconclusive as to whether the signature was that of Mr Face.

However, it was the wording used in the 2017 Will that was the basis for HHJ Hodge QC determining that the 2017 Will was a forgery. The judge referred to the terms of the 2017 Will as “utterly incredible” containing language that Mr Face would not have used. It was found that the 2017 was a forgery and that Mr Face died intestate.

Standard of Proof

Whilst the claimant accepted that the burden of proof should be based on the balance of probabilities however, she contended that in this case, the burden was on the defendants to prove forgery (having made the allegation). In making his judgment, the judge held that as it was a formal requirement (pursuant to the Wills Act 1837) that the will was in writing, signed by the testator and duly witnessed, and that the burden of proof must rest on the party seeking to propound the will to establish that it had been validly executed and witnessed.

In this case therefore, the burden of proof was on the claimant to prove that the 2017 Will was valid.

The judge drew a distinction between a case where a will is challenged on the grounds of fraud or undue influence and a situation where a will is challenged on the grounds of forgery. He held that the ultimate burden of providing that a will is not a forgery must like with the party seeking to propound the will.

This is a direct contrast to an allegation of fraud or undue influence; in those circumstances it was clear that the burden lay with the party making the allegation.

The decision of Brunt & Anor v Wrangle [2021] 1 WLUK 332

Mr Brunt died in December 2007. However, a will was not found until 10 years after Mr Brunt’s death. The claimant, Mr Wrangle, was the deceased’s uncle by marriage. The defendants were Mr Brunt’s mother and elder brother. Following Mr Brunt’s death, his mother applied for and was granted letters of administration on the basis that Mr Brunt had died intestate. However, on 8 November 2018, the claimant sought an order revoking the grant of the letters of administration. He propounded a will dated 2 March 1999 which had purportedly been discovered by Howard Day who had previously acted as the Deceased’s legal advisor. Shortly before the trial, a second copy of the 1999 will was located when a pile of papers due to be shredded were knocked over by Mr Day’s cat. Both wills had been signed by Mr Day although the signatures on the wills were slightly different from each other. Other documentary evidence was produced by the claimant, including attendance notes and an entry in Mr Day’s diary, recording that the will had been signed. The claimant claimed that they were valid duplicate wills.

The defendants contended that the wills were forged. They claimed that the documents were not executed in 1999 but were created several years after Mr Brunt’s death. They put forward evidence that the land agent had a conviction for fraud (in an unrelated matter) which cast doubts on his honesty.  Handwriting experts instructed by the defendants agreed that the 2 wills had been executed separately and that the land agent had not signed them in March 1999 but at a later date. The expert also found that the second page of the later copy of the will had been printed from a different printer on different paper, and that the note in the diary had been added later.

At first instance, Master Teverson found in favour of the claimant that the purported will of Mr Brunt was not a forgery and accordingly revoked the letters of administration. Following the precedent in Re Parsonage (Deceased) (2019 EWHC 2362 Ch), Master Teverson found that reliable contemporaneous evidence should be taken as the starting point for the finding of facts, with other facts and evidence being taken into account. He also relied on witness evidence provided by the deceased’s sister and uncle and found that he was not persuaded by the expert evidence. The defendants appealed the decision on the basis that there was no reliable contemporaneous evidence to use as a starting position, as the whole case was that the documentary evidence was forged. 

On appeal, Green J agreed that Master Teverson had erred in his assessment of the evidence and he had failed to give enough weight to the expert evidence.

A retrial will take place before a High Court judge as soon as it can be listed.

Conclusion

The stakes are high in any case involving alleged forged wills both for the party seeking to prove there has been a forgery but certainly for anyone defending such an allegation. In the Face case, having found that the claimant forged the 2017 Will, the Judge directed that the transcript of his judgment should be referred to the Crown Prosecution Service to determine if criminal proceedings should be brought against the claimant.