It is fair to say that a Will can be challenged in a number of different ways however, perhaps one of the more exciting areas is forgery. Increasingly, cases of forgery are coming before the Court for determination despite the heavy burden the Claimant has to discharge in order to be successful.
Before we consider forgery in more detail, it can do no harm to remind ourselves of the requirements of a valid Will.
Section 9 of the Wills Act 1837 provides that:
'No will shall be valid unless:
(a) It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the will; and
(c) The signature is made or acknowledged by the testator in the presence of two or more witness at the same time; and
(d) Each witness either
- Attests and signs the will; or
- Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).
but no form of attestation shall be necessary.'
It perhaps goes with-out saying that if it can be proven that a Will has been forged or the testator's signature has been forged, this will result in the Will being invalid. If this is the case, you will need to look at previous valid Wills to determine how the testator's estate will be administered, or if there is no previous valid Will, the estate will be administered in accordance with the Intestacy Rules.
Alleging that a Will has been forged or the testator's signature on it, is not an allegation which should be made lightly and the difficulty in proving forgery should not be underestimated.
In order to establish that a Will is a forgery, it has to be proven on the balance of probabilities (i.e. if you can prove your case 50.1% you will be successful) however, given the seriousness of an allegation of fraud, the burden is much tougher to discharge.
Forgery cases are heavily reliant on expert evidence, typically that of a handwriting expert, however this can sometimes prove inconclusive therefore, the whole factual matrix surrounding the Will's preparation and execution has to be considered.
The significant burden Claimants are required to overcome was demonstrated last year in the case of Abdul Sattar v (1) Abdul Salam (2) Saber Sharif (2015).
The case concerned the estate of Hazerra Khalick who had two brothers, one of whom lived in New York, the other lived in England. Her 2001 Will divided her residuary estate between her brother in New York and her stepson. Her 2010 Will left her entire residuary estate to her brother in England. Her brother in New York claimed that the Deceased did not sign the 2010 Will and that the witnesses to her signature signed after her death.
The two main questions before the Court were:
- was the 2010 Will validly executed? and
- was the Deceased's signature forged and the witnesses' signatures added after she died?
The Judge in this case found that the circumstances surrounding the preparation and execution of the disputed Will were suspicious. In particular it was unclear how the Will had come into being and the witnesses to its execution were either unavailable to give evidence or gave several inconsistent witness statements having been put under pressure by their community to change their evidence. The evidence from the handwriting experts was also inconclusive. That said, despite the suspicious circumstances there was not enough evidence to support forgery and therefore the Judge found that the 2010 Will was validly executed.
Contrast this with Haider v Syed (2014) where the Judge found that the facts surrounding the execution of an alleged Will in India were sufficiently suspicious to make a finding of forgery, despite the fact that the three alleged witnesses to the Will gave evidence by affidavit and at the trial.
Watts v Watts (2014) was a dispute between siblings over their late mother's estate. The Deceased executed a Will in 1999 dividing her estate equally between her two children, however, in 2011, some 14 days before she died she purportedly executed a will leaving her entire estate to her son, disinheriting her daughter entirely. The Deceased's daughter challenged the validity of the 2011 Will and relied on a handwriting expert, recorded by the judge 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. The Defendant's handwriting expert was referred to as 'a graphologist with no scientific training'. The same expert was later the subject of a Panorama documentary about the lack of impartiality in expert witnesses. The Judge ultimately found that the Will had been forged after accepting the evidence of a staff nurse who claimed to have seen the other witness (who also happened to be the main beneficiary) sign the Will but not the deceased.
In Pittas v Christou (2014) the Will forgery claim failed. The Judge accepted the evidence of the witnesses to the Will. In particular the Judge believed the solicitor who said that he had instructions for the Will despite some fairly suspicious circumstances surrounding the preparation and execution. The handwriting expert, whose evidence was unchallenged was clear that the handwriting on the Will was in fountain pen. However, everyone who wrote on the Will denied they had used a fountain pen. One of the witnesses said he had not used one for 35 years and the other said she had only seen one on the television. In spite of this, the Judge was of the opinion that none of the witnesses would have wanted to get involved in a conspiracy to forge a Will.
So, what is clear from the recent court decisions is that forgery cases are incredibly fact sensitive. Furthermore, there is no such case as a dead cert, even if it appears that you have expert evidence on your side as well as evidence from the attesting witnesses. Choose your expert with care. The Court will consider each case on its facts and sets the bar incredibly high for those waiving the forgery card. Be sure to have all your ducks in a row before embarking on such high risk and challenging litigation.