Forged or fraudulent wills are an issue in the contentious probate world. A forged will is often signed in the testator’s name without their knowledge or consent and presented as their last wishes. Usually this would benefit the person committing the forgery.
It can be difficult to obtain sufficient evidence to satisfy the court that forgery has taken place. By its very nature it is a serious allegation to make. Until recently, the burden of proof (i.e. the obligation to prove the assertion made) was on the person making the allegation that the will was a forgery. However, the recent case of Face v Cunningham has changed this.
Face v Cunningham relates to the estate of the late Donald Face, who died in 2017. The deceased’s daughter, Rebeca applied to the court to propound (i.e. put forward for probate) an alleged lost will, dated shortly before the deceased’s death. The original will could not be located and only a photocopy was available. This missing will appointed Rebeca as the executor and major beneficiary of the estate, with gifts of £5,000 to the children of the deceased’s other children, Richard and Rowena.
Rowena alleged that the will was a forgery and that Rebeca had conspired with the two witnesses to the will who claimed to have witnessed Mr Face’s signature. In response, Rebeca argued that the burden of proof was on the defendants (Rowena and Richard) to establish that the will was a forgery in accordance with previous court decisions.
In usual circumstances the person propounding a will must establish that the will satisfies the requirements of the Wills Act 1837. This includes that the will:
- Was in writing
- Was signed by the testator who intended to give effect to the will and
- Was signed in the presence of two witnesses present at the time, who then sign the will, or acknowledge their signature in the presence of the testator.
HHJ Hodge QC considered that in addition to these formal requirements, the burden of proving that the will is not a forgery must lie with the person seeking to propound the will. He considered this to be part of the requirement of proving that the will was duly executed by the deceased and also duly witnessed, as required by the Wills Act 1837.
The court found that evidence within Mr Face’s journals did not suggest that Mr Face ever made a will and the terms of the will contained language used by Rebeca and not Mr Face. There were also discrepancies in how Mr Face referred to Rowena in the will, Mr Face’s intentions to provide for Richard and the distance Mr Face allegedly travelled to execute the will.
The judge went one step further and directed that a transcript of the judgement was to be referred to the Crown Prosecution Service in respect of potential criminal proceedings. This demonstrates the serious implications of Rebeca’s actions in seeking to rely on a forged will.
The court considered that the claim to propound the forged will was totally without merit and it was dismissed. The estate was to be distributed in accordance with the intestacy rules. This meant that Rebeca was still entitled to one third of the estate. However, due to Rebeca’s conduct, she was ordered to pay the defendants’ costs on the indemnity basis (those that are reasonable but do not have to be proportionate). The court commented that these costs should be recoverable from Rebeca’s share of the estate, which will reduce what she received from the estate.
People hoping to rely on a forged will should consider this case to be a stark warning, not just on the risk of being ordered to pay the significant costs of the other parties in a civil dispute, but also the risk of being criminally prosecuted. This important decision should assist those seeking to dispute a forged will by placing the burden of proof on the person seeking to rely on such a will. However, allegations of a forgery are very serious and should not be made lightly.
Always seek legal advice from a specialist Contentious Probate practitioner who can advise on the merits of pursuing or defending claims involving forged wills. Other grounds may be available to challenge a will, such as the testator lacking knowledge and approval of the terms of the will, if there is insufficient evidence available regarding the forgery. Our team are always available if you would like to discuss the specific circumstances of your case.
