Is It Easy to Challenge a Will Based On Forgery?

Challenging a Will because you believe it’s a forgery isn’t easy. You may think you have solid evidence but putting your argument together isn’t always straightforward. The recent case of Rainey v Weller tells us why.

Rainey v Weller [2021] EWHC 2206 (CH)

Claims over the validity of any Will invariably raise issues over capacity, undue influence and coercion. Notoriously tricky to prove. But you might think that forgery cases (which are increasingly common) would be less nebulous and more clear-cut.

In Rainey v Weller, the case focussed on establishing the validity of two Wills, purportedly made within a few weeks of each other.

The Background

Dated 9 February 2018, the first Will (the February Will) appointed Anne Rainey, the niece of the deceased widow Brenda Weller, as co-executor and the sole beneficiary of the estate. The second Will, allegedly executed on 5 March 2018 (the March Will), was a homemade Will prepared by Paul, Brenda’s son.

The February Will was prepared by Austin Ryder Solicitors following a meeting Mrs Weller attended at their offices alone on 2 February 2018.

Brenda attended a meeting at Austin Ryder Solicitors on 2 February 2018, returning to execute the February Will on 9 February 2018. Whilst there, she signed a Lasting Power of Attorney appointing Ann to manage her property and affairs (the LPA). The LPA was completed on 23 February 2018 after Ann and Brenda’s daughter, Paula (the replacement Attorney), also signed. The LPA was registered with the Office of the Public Guardian (OPG) in May 2018.

Brenda’s son Paul claimed that his mother had then asked him to make the March Will, leaving her entire estate to her ‘favourite grandchildren’ in equal shares. This Will named Paul as Executor, and he claimed that the March Will was correctly witnessed.

After Brenda died, as Executor of the February Will (and witnessed by family members), Ann opened a suitcase left by her Aunt Brenda (the Suitcase). This Suitcase contained sealed envelopes addressed to Toni, Paul’s wife, and Brenda’s grandchildren, each containing £1,000 in cash. The Suitcase also contained some jewellery for the grandchildren and a copy of the February Will. Unfortunately, neither Ann nor Paul had any knowledge of the Suitcase contents until it was opened.

A little later, without telling anyone, Paul made an application for a Grant of Probate based on the March Will. A move that prompted Ann to challenge the Will, alleging forgery.

The Challenge

The February and March Wills were examined by separate experts, who compared Brenda and Paul’s signatures.  Ann’s expert said that the February Will was signed by Brenda and that there was substantial evidence to suggest that Brenda did not sign the March Will.

However, Paul’s expert found only ‘moderate’ evidence that Brenda had signed either Will.

After considering this contradictory expert evidence, calling 13 witnesses and looking at Brenda’s solicitors’ Will and LPA file, Deputy Master Linwood concluded that the March Will was a forgery. However, the February Will was executed correctly and valid.

Furthermore, he recognised that Brenda had placed trust in her niece Ann by appointing her as Attorney and Executor, supporting the claim that the February Will was legitimate.

Paul, on the other hand, did not have solid documentary evidence. For example, he did not provide any proof of where he got the March Will template. Questions were raised about the legitimacy of a photo of the March Will allegedly taken on the day the Will was signed. There were multiple text messages and witness testimony to lack of trust and estrangement between Paul and his mother, Brenda.

The court also noted that Paul could not explain why his mother had changed her mind so soon after making the February Will. In the court’s opinion, it was highly improbable and “verging on the impossible” that Brenda would have changed her Will in the few weeks between the February Will being executed and the date of the March Will.

Conclusion

The deception, conspiracy and family intrigue make this case quite an interesting one. But, from a legal perspective, the forgery claim was not pivotal in the outcome of this case.

The expert evidence was undoubtedly an important factor in how Deputy Master Linwood reached his decision. Still, his final judgment underlines how factual and documentary evidence plays a central role in determining whether a forgery occurred.

Asking a solicitor to draw up your Will, creates an auditable paper trail. Furthermore, a solicitor is legally bound to make sure there is no undue influence or coercion, that capacity isn’t an issue, and wording is unambiguous.

Our Advice

If you have any concerns about the circumstances in which a Will was prepared or need further information about making a Will or LPA, contact us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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