Is The Will a Forgery?

Disputing a Will because you believe the Will is a forgery takes a lot of work. Challenges are often made based on lack of testamentary capacity, undue influence or lack of knowledge and approval. But contesting a Will based purely on forgery is less common, even if there’s a genuine concern. You may think you have solid evidence, but putting your argument together isn’t always straightforward.

What Constitutes Fraud or Forgery?

Examples include when an individual hasn’t signed their Will, and someone else has copied their signature (forgery), or an individual signs the document thinking it’s something else, not realising it’s a Will (fraud).

Committing fraud or forging a Will is both a criminal and civil offence. For a successful civil claim, an applicant must convince the court that it’s more than 50% likely that forgery or fraud has happened. In a criminal case, the burden of proof is considerably higher. The court must be convinced (beyond reasonable doubt) that forgery or fraud has occurred.

Key Evidence

The quality of the independent forensic analysis determines whether the Will is invalid due to fraud or forgery.

Expert Evidence

Depending on the circumstances, specialist reports include: 

• Signature analysis
• Handwriting analysis
• Paper examination
• Forensic ink analysis
• ESDA (an electrostatic detection device) 

Witness Evidence

Additionally, individual witness evidence about relevant issues is also vital. This covers: 

• When, where, and how the Will was discovered
• The individual’s history of making Wills
• Known facts about the individual’s wishes
• The conduct of those allegedly involved in the forgery/fraud 

Cautionary Tale

Watts v Watts [2023] EWHC 679 (Ch)

This recent case concerned Eustace Fitzgerald Watts, who died in 2008, leaving a Will dated 8 February 2000. His Will appointed his wife, Jobyna, as his executor and sole beneficiary of his estate. The Will was executed and witnessed by a local firm of solicitors.

Carlton, one of the couple’s sons, challenged this Will, alleging (through an expert report) that his father’s signature had been forged. Carlton also stated that his late father had made a Will in 1994 under which he was due to inherit a third of the estate, leaving the remainder equally to his mother and brother.

The 2000 Will under scrutiny included a valid attestation clause. This meant that Carlton was legally obliged to prove the forgery claim. The report Carlton’s expert produced only included one example of Jobyna’s handwriting and no samples of Eustace’s signature and handwriting.

Jobyna’s expert was experienced and referred to 18 handwriting and signature samples (for Eustace and Jobyna) over 65 years. Additionally, Sarah Evans, the solicitor who had arranged and witnessed the 2000 Will, appeared as a witness.

The Judge dismissed Carlton’s claim because he had failed to establish that his mother had forged the Will. He accepted the evidence of the solicitor witness and the mother’s expert, concluding the Will was not a forgery.

Comment

Challenging a Will based on forgery is difficult because the standard of proof required is exceptionally high. And in this case the burden of proof in this case rested with Carlton, whose expert failed to impress. Whilst Jobyna’s expert provided a convincing (and very detailed) report, it’s clear that the witness testimony given by Sarah Evans, the solicitor who prepared Eustace’s Will, proved crucial.

Our Advice

Asking a solicitor to draw up your Will creates an auditable paper trail, making contemporaneous notes and invariably stores the original Will for safekeeping (invaluable in cases of alleged fraud or forgery). Furthermore, a solicitor is legally bound to ensure no undue influence or coercion, that capacity isn’t an issue, and that wording is unambiguous. 

If you have any concerns that a Will may have been obtained by fraud or forgery or is invalid for any other reason or would like to make 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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