Proving Will Fraud or Forgery: Is There Evidence?

10 February 2022

When a family member or loved one dies, sometimes the terms of their will, if they made one during their lifetime, can come as a surprise to those who survive them. For example the will might include unexpected beneficiaries, or certain beneficiaries might receive a greater or lesser share of the estate than others. Under the laws of England and Wales, a person has the freedom to leave their estate to whoever they choose and there is no legal obligation to provide for any particular family member or other individual. Therefore, whilst family members or individuals might regard the terms of the will as unfair or unexpected, the law will generally uphold the wishes of a testator set out in their will, if it has been validly made.

However, sometimes surprise about the contents of a person’s will goes hand in hand with a concern that the will might not be valid as a result of either fraud or forgery. If it turns out that a will has been forged or has been obtained by fraud, then it will be declared invalid. Examples of this might include where the will has not been signed by the testator and someone else has forged their signature on the will (forgery), or where the testator has signed the document but does not know it is a will and believes it to be something else (fraud).

Will forgery and fraud are criminal offences, as well as civil offences. In civil cases, the claimant must convince the court on the balance of probabilities that it is more likely than not that forgery or fraud has taken place (that is, more than 50% likely). In criminal cases the standard of proof is higher; the court must be satisfied beyond reasonable doubt that forgery or fraud has taken place. This higher burden reflects the more serious consequences of a criminal conviction against a defendant.

However, whether civil or criminal proceedings are contemplated (or both), the evidence relied on by a claimant will often be the same and expert evidence will most likely be a central part of any case. Obtaining the opinion of an independent forensic document examination expert early on in a case is crucial to determining whether or not there is evidence to support a claim that a will is invalid due to fraud or forgery. 

There are a large number of techniques available to forensic document examination experts which are used to look for evidence that a will has been forged or obtained by fraud:

Signature analysis

Where there are concerns that the signature on the will is not the genuine signature of the testator, experts will look for evidence of signature tracing, simulation (copying) or transposing. They will need to look at as many examples of genuine signatures as possible, in comparison to the questioned signature, and take into account variation of signature over time (no signature is exactly the same as the next) or due to poor health.

 

Handwriting analysis

Experts can examine handwriting for clues as to whether the handwriting is genuine, or has been written in a way as to disguise the writer’s usual writing style, or to simulate someone else’s handwriting.

 

Paper examination

This can be used to identify whether multiple pages of a document have been printed or written at different times, or on different printers, and whether document pages have been substituted or replaced.

 

Forensic ink analysis

Used to identify different inks on a document and which can show whether a document has been edited or altered  and can identify if text has been altered (for example where an alteration or addition has been made in the same colour ink, which is invisible to the naked eye, but identifiable under forensic inspection as having been made using a different ink).

 

ESDA (an electrostatic detection device)

A technique used to help identify indentations or impressions on a document, which can appear when the document has been rested on, underneath another document. The writing on the top document appears as an impression on the document underneath, which can give valuable information about the timing and creation of the underlying document.

 

In addition to the expert evidence, the witness evidence about relevant issues will also be important. This will often include information about (i) the circumstances and timing of the discovery of a will, (ii) what the testator might have told others about making their will, (iii) the testator’s will-making history and (iv) the conduct of the alleged defendants. In cases involving allegations of fraud (for example where the signature on a will is genuine but the person signing it didn’t know what they were signing) the evidence of those allegedly involved in the fraud will be particularly important.

Whilst the key evidence will often be the same, the burden of proof will differ depending on whether forgery or fraud is alleged. In Face v Cunningham [2020], the court drew a distinction between a case where a will is challenged on the grounds of fraud and a case where a will is challenged on the grounds of forgery. The judge in Face v Cunningham held that the ultimate burden of proving that a will is not a forgery must lie with the party who seeks to propound and rely on the will. This is a direct contrast to an allegation of fraud (or undue influence); in those circumstances the burden of proof lay with the party making the allegation. In this case, having found that the testator’s will had been forged, the Judge directed that the transcript of his judgment should be referred to the Crown Prosecution Service to determine if criminal proceedings should be brought. If criminal proceedings are pursued in cases like these the stakes are high, as a conviction can result in a custodial sentence.

Early gathering and preservation of documents is crucial in cases involving fraud and forgery, particularly documents which feature the testator’s handwriting and signatures, as well as communications with professionals or individuals believed to have been involved in the relevant matters. Contemporaneous evidence is extremely important, as the court will want to see this alongside the expert and witness evidence. Allegations of fraud or forgery are serious and so making sure you have identified and preserved the best evidence as soon as possible will have a direct impact on whether the claim is capable of being proven or not.

If you have concerns that a will may have been obtained by fraud or forgery, or is invalid for any other reason, contact a member of our team or see further information on our website.

FURTHER INFORMATION

Further information regarding wills, trusts and inheritance disputes and regarding professional negligence is available on our website. 

 

 

ABOUT THE AUTHOR

Kate Salter is an Senior Associate in the Dispute Resolution team with a wide range of litigation experience, and with particular expertise in Wills, Trusts and Inheritance Disputes.

 

 

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