Wills can be challenged on the grounds of a lack of testamentary capacity, undue influence or a lack of knowledge or approval. However, another basis on which a Will can be challenged, which arguably carries the most serious implications, is an allegation of forgery.

Formalities

For an allegation of forgery to succeed, it is necessary to show to the Court that the executed Will does not comply with the formal requirements for wills set out by section 9 of the Wills Act 1937. Most allegations of forgery surround the fact that the signature of the person whom it is alleged has made the will has been forged. However, a will can also be said to have been forged if the individual attempting to prove the will knows that the person making it did not sign in front of the two witnesses whose signatures may have been added later. Perhaps the most extreme example of forgery is a will which has been entirely forged by an individual claiming it to have been made by the deceased.

Recently, in response to the Covid-19 pandemic, the Wills Act 1837 has been amended so that ‘presence’ includes a virtual presence by video-link. The government has recently announced that this amendment will last until at least 31 January 2024. Whilst remote will witnessing is a useful option to have during the pandemic, it is almost inevitable that it has and will continue to lead to a greater risk of abuse and forgery. As the will needs to be sent in the post to witnesses ( potentially at separate locations), and then returned in the post, it is more susceptible to being intercepted along the way and fraudulently altered or replaced entirely by a forged will.

Certain factors may arouse suspicions as to whether the will has not been prepared and executed in accordance with section 9. These may include:

• the handwriting or signature on the will looking different to that of the Deceased’s;
• the witnesses not recalling being present during the signing;
• a drastic change from a previous will or the known expressed wishes of the deceased during their lifetime;
• homemade wills allegedly prepared shortly before death;
• wills found unexpectedly after death;
• a connection between the witnesses and the person who benefits under the will; and
• no will being found when the Deceased had said they made one.

These are just a few possible indications that a possible forgery is being perpetrated. However, this is by no means an exhaustive list and any will being presented in suspicious circumstances should be investigated.

Burden of Proof

When disputing a Will, the standard of proof required is normally on the balance of probabilities. However, as forgery is a form of fraud, it is a difficult hurdle to establish fraud, which requires strong evidence. Recent developments in case law surrounding this have confirmed that in cases of forgery the burden rests with the person alleging fraud to establish on the balance of probabilities the facts. However, the burden of proving the formalities of section 9 were duly complied with lies with those proving the Will.

Evidence

When challenging a Will based upon forgery, it will often be necessary to instruct a handwriting expert to determine whether the testator’s signature is genuine.

A handwriting expert’s evidence is extremely valuable so much so that if the handwriting expert produces a report in which their conclusions are inconclusive, it will be difficult to succeed with a claim that the Will was forged. Accordingly, at the outset, if you wish to contest a Will, witness statements should be obtained from any relevant witnesses regarding the surrounding circumstances, in addition to original documents with signatures of the deceased to then assist in a handwriting expert being instructed.

Implications

If the court finds that a Will is a forgery or the testator’s signature is a forgery, the Will will be invalid. Where a Will is successfully disputed and the court confirms the Will is invalid, if there is no earlier valid will, then the testator’s estate will be distributed according to the Intestacy Rules.

Claims alleging fraud, forgery, or undue influence can be distressing for all parties involved, and given the seriousness of the allegations, it is important that specialist legal advice is obtained at the outset. At Gosschalks, we have a specialist team who can advise on all aspects of contentious Wills, whether you are trying to prove a Will and are defending a claim, or you are seeking to challenge validity.

Need advice on any of the issues raised in this article?

Whether you need to dispute a will or defend your inheritance, our specialised Contentious Probate Team will work with you to achieve the best result for you. You can contact the author, Allanah Hutchinson, on 01482 324252 or via email. You can find out more about the Wills & Estates Disputes team by clicking or tapping here.