Solicitors’ Delay in preparing a Will – When is it Negligent?
In the past year, the High Court has been asked to determine whether a purported will is a forgery on three different occasions. This is an interesting development because there is often a perception amongst lawyers that contested will forgery actions rarely reach trial. I briefly summarise the outcome of the three cases below and comment on some of the key aspects of will forgery claims that litigants need to be aware of before making allegations of will forgery.
In Haider v Syed (2014) the judge found that the will had been forged even though the three alleged witnesses to the will gave evidence by affidavit and at trial.
In Watts v Watts (2014) the judge found that the will had been forged after accepting the evidence of a staff nurse who claimed to have seen the main beneficiary (the deceased's son) sign the will but not the deceased.
In Pittas v Christou (2014) the will forgery claim failed because the judge accepted the evidence of the witnesses to the will, particularly that of the solicitor, on the basis that he did not believe that any of those witnesses would have wanted to get involved in a conspiracy to forge a will.
What these cases tell us is that, similar to undue influence claims, the outcome is very dependent on the court's perception of the witnesses at trial and individual judges will often be swayed by instinct as to whether fraud is the most probable explanation. This theme is clear in Pittas v Christou and also in Haider v Syed, in which the judge said that the case put forward by the beneficiary of the forged will was "literally incredible".
As a result, it is important for lawyers when assessing the merits of a potential will forgery claim to really probe the witnesses as much as possible and to have an open mind about other factual possibilities in terms of why and how the disputed will came to be made. I have always considered forgery allegations to be extremely difficult when the disputed will has been witnessed by independent individuals with seemingly nothing or little to gain from forging a will, especially if those witnesses have acted in a professional capacity. If a forgery allegation is going to be problematic for that reason, but the circumstances surrounding the making of the will are generally suspicious, it might be more prudent for prospective claimants to challenge the will on the grounds of want of knowledge and approval instead.
The civil courts approach will forgery allegations in the same way as other allegations of fraud or forgery, which means taking into account the inherent unlikelihood or likelihood of forgery having occurred, but will decide the case on the balance of probabilities. As stated by the court in re Dellow's Will Trusts (1964), "the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it". This approach can also be seen in the way that the courts have tackled undue influence allegations in disputed will cases.
In my view, an important distinction between undue influence claims and will forgery claims is that only in the latter is the court likely to be greatly assisted, and possibly persuaded, by expert evidence. Therefore, even though (as explained above) will forgery claims are highly fact sensitive, the prospects of succeeding with the case will be improved by getting a good, reputable forensic document examiner on board at the outset.
Forensic document examiners will scientifically analyse handwriting and signatures on wills and related documents, whereas graphologists tend to focus on character traits from handwriting analysis. I generally only instruct forensic document examiners for that reason and because the courts have understandably demonstrated a strong preference for them over graphologists.
In conclusion, recent developments before the courts indicate that will forgery claims are more prevalent than many observers realise. Individuals (and their lawyers) looking to embark on a will forgery allegation ought not to be deterred by the fact that the allegation is serious. However, there should always be a thorough analysis of the witnesses and the credibility of their evidence. There should also be an open minded and sensible assessment of the probability of the explanations provided for why and how the will came to be made and ideally a favourable report from a suitably qualified forensic document examiner.
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