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From Certificates to Belief Statements: The CPS and the Limits of Forum Bar Intervention
Rebecca Niblock
It has been widely reported in the mainstream media this week that a Mr Stewart Pearman has been jailed for over five years for trying to steal more than £2 million left by a friend to an air ambulance charity before her death by cancer in 2016. Mr Pearman had been bequeathed £25,000 by his friend in her Will made in 2014 but shortly before her death forged a document that declared he was the sole executor and main beneficiary of her estate. The two witnesses to the forged document initially gave evidence confirming that they witnessed the deceased signing the document but subsequently admitted that they signed the letter after the deceased had died.
It is not unusual in disputes surrounding wills, probate, trusts and estate administration for there to be a cross over with the criminal law and the most obvious crossover between the criminal and civil law in this area arises from the misappropriation of estate assets. The deprivation of money from those to whom it was due being primarily a civil matter but the misappropriation of money to which an individual was not entitled, whether it is theft or fraud, can be a criminal matter.
Fraud
If the content of a will does not set out the true intentions of the testator it may be possible to contest the will on the grounds of fraud. For example, a will could be fraudulent if the deceased has made a bequest to a beneficiary on the basis of misrepresentations made by another person. Or, someone might have impersonated the testator in order to execute a will or trust document. Or, a valid will might have been destroyed by a third party seeking to benefit from a previous will or intestacy.
Challenging a will solely on the basis of a fraud is difficult, not least because the deceased is likely to be the only first hand witness and obviously not able to give evidence. The burden of proof on a fraud allegation is higher than usual in a civil case. It should however be borne in mind that it might still be possible to challenge the will on another ground (most likely that the deceased did not have the requisite knowledge and approval of the contents of the will).
Criminal fraud is an offence prosecuted by the CPS, the Serious Fraud Office or other authorised prosecution agencies and is triable before both the magistrates’ and the crown courts. If there is a finding of guilt (either from a jury verdict or a plea of guilty) a defendant will face a sentence of up to 10 years’ imprisonment.
Theft
Under section 1 of the Theft Act 1968 a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it. Section 2 of the Theft Act 1968 sets three statutory circumstances when a person ‘honestly’ appropriates – namely where they have a belief: a) of a right in law to appropriate the property; b) that the owner would have consented; or c) that the owner could not be discovered by taking reasonable steps. If none of these situations, the question of guilt often lies in the question of whether the person was dishonest. Acts of theft can often be a feature involving financial abuse of the elderly or vulnerable by supposed loved ones.
Forgery
A forged will is one of the civil grounds for contesting a will. The will might have been forged in its entirety or it could simply be that the signature of the person making the will has been forged. Should a will challenge be successful on the grounds of a forgery, then it will be declared invalid.
Sections 1 to 5 of the Forgery and Counterfeiting Act 1981 set out a number of criminal offences of forgery. These include: making, copying, using and using a copy of a false instrument. In each case the prosecution must prove that the act of forgery is combined with an intention, by the person, that he or another shall use it to induce somebody to accept it as genuine (or a copy of a genuine instrument), and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.
In these types of cases it is important to be aware from the outset that civil or criminal liability is a possibility. Whether parallel proceedings are already in motion, or matters subsequently come to light that may give rise to police involvement, knowledge and a sensitive approach is key when juggling the potential financial consequences of a particular matter alongside a criminal prosecution and the chance that those involved could face a prison sentence.
FURTHER INFORMATION
If you would like further information on any of the topics raised on this blog, please contact Katherine Pymont or any member of the Dispute Resolution team.
ABOUT THE AUTHOR
Katherine Pymont is a Senior Associate in our Dispute Resolution team. She specialises in Wills, Trusts and Inheritance Disputes. Katherine's experience includes challenging the validity of wills (including claims for lack of testamentary capacity, want of knowledge and approval, fraud, forgery and undue influence), claims under the Inheritance (Provision for Family and Dependants) Act 1975, removal of executors and trustees, breach of trust claims, fraud cases involving trust structures and professional negligence claims relating to wills and trusts.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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