Wills are often challenged on the grounds of lack of testamentary capacity, undue influence or lack of knowledge and approval. An alternative basis for challenging a will which is less frequently used (but which may carry the most serious implications) is an allegation of forgery.
In this article, we consider how parties can bring a claim challenging a will on grounds of forgery, the various hurdles which must be overcome, and the extent of the evidence required to do so.
Formalities: Section 9 of the Wills Act 1837
There is no specific definition of a forged will. Instead, for an allegation of forgery to succeed, it will be necessary to satisfy the Court that the will being propounded does not comply with the formal requirements for wills as set out in Section 9 of the Wills Act 1837, which provides as follows:
‘(1) No will shall be valid unless:
(a) It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the will; and
(c) The signature is made or acknowledged by the testator in the presence of two or more witness at the same time; and
(d) Each witness either
i. Attests and signs the will; or
ii. Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).
but no form of attestation shall be necessary.’
The most common allegation of forgery is that the signature on the propounded will is not the signature of the testator. Another example is where the person trying to propound the will knows that the testator did not sign the will in front of two witnesses and the witnesses’ signatures were added later. One of the most extreme examples of forgery would be where an individual makes a will pretending to be someone else. Clearly in that situation the signature on the will would also be a forgery.
In response to the Covid-19 pandemic, section 9(1)(c) and (d) of the Wills Act 1837 has been amended so that ‘presence’ includes a virtual presence by video-link. The government has recently announced that this amendment will last until at least 31 January 2024. Whilst remote will witnessing is a useful option to have during the pandemic, it is almost inevitable that it will lead to a greater risk of abuse and undue influence. Additionally, as the will needs to be sent in the post to the witnesses (at separate locations if the witnesses are not present together), and then be sent back in the post to the testator or testator’s solicitor, it is more susceptible to being intercepted along the way and fraudulently altered or replaced entirely by a forged will.
Certain factors may arouse suspicions as to whether the will has not been prepared and executed in accordance with section 9. These may include:
- the handwriting or signature on the will looking different to that of the testator;
- the witnesses not recalling being present during the signing;
- a drastic divergence from a previous will or the expressed wishes of the testator during his lifetime;
- homemade wills alleged to have been prepared shortly before the testator’s death;
- wills found in unexpected places or at unexpected times after the testator’s death;
- a connection between the witnesses and the person who benefits under the will; and
- no will being found when the Testator had said they had made one.
These are just a few of the possible indications that a possible fraud is being perpetrated and that you should be on guard for forgery. However, they are, by no means a conclusive list and any will being propounded in suspicious circumstances should be investigated.
Burden and standard of proof
When disputing a will, the standard of proof required is normally on the balance of probabilities.
However, as forgery is a form of fraud, and therefore a criminal matter, a higher level of proof will be required. The court often refers to the decision in Re H (Minors)  AC 563 with regard to the standard of proof, which held that the more serious the allegation, the less likely the event occurred, and therefore the stronger the evidence should be. As such, any action based on an alleged forgery should not be commenced without strong evidence.
Nonetheless, the position has been made somewhat easier for those disappointed potential beneficiaries seeking to challenge a forged will by the decision of HHJ Hodge QC, sitting as a High Court Judge in Face v Cunningham  EWHC 3119 (Ch).
Prior to this decision it was generally accepted that the burden of proving forgery or fraud rests with the party alleging it as confirmed by the decision of Barling J in the case of Haider v Syed  EWHC 4079 (Ch). A task made more difficult as the person propounding the will could rely on the ‘presumption of due execution’, i.e., if a will appears to be valid on the face of it then it’s presumed to be valid unless it can be proved otherwise.
However, following a nine-day hearing HHJ Hodge QC, rejected the commonly held view (which had been accepted by both counsel) stating at :
“I do not accept that the burden is on a person alleging forgery to establish that fact (albeit to the civil, rather than the criminal, standard of proof). It is a formal requirement of the validity of a will that (amongst other things) it is in writing, it is signed by the testator (or by some other person in his presence and by his direction) and it is duly witnessed. It therefore seems to me that the burden must rest on the party propounding a will to establish that it has been validly executed and witnessed. That is one of the formal requirements for proof of a will.”
However, HHJ Hodge QC did go on to draw a distinction between a situation where a will is challenged on grounds of fraud or undue influence and a situation where a will is challenged on grounds of forgery. Where there is an allegation of fraud or undue influence it was clear that the burden does rest with the person making the allegation.
Although this is a first-instance decision, it is on reflection a logical and fair conclusion. The presumption of due execution is, after all, only a presumption, and the initial burden will always be on the person propounding the will to show that the will was duly executed by the testator and was duly witnessed. As such, it is expected that this decision will establish a precedent that it is no longer sufficient to simply rely on the presumption of due execution where a party alleges forgery in disputing the validity of a will. The proponent will have the burden for proving the formalities of section 9 were duly complied with. Whether this is a heavy burden or not will largely depend on the facts of the case and the evidence before the Court.
The decision in Face v Cunningham does not mean that the flood gates have been opened for anyone looking to challenge a will to allege forgery and require the propounder to prove a negative. However, it does stop a fraudster sitting back and saying, “Prove it!”, now the burden is on the potential fraudster to prove the validity of the propounded will.
The evidence that will be needed to prove the due execution of a will (or disprove it), will mainly take the form of witness and documentary evidence setting out the circumstances surrounding the execution of the will. It is likely that this will mainly be provided by the attesting witnesses (or the will drafter in circumstances where the Testator did not draft the will). If the evidence is strong, then it could be difficult for the accuser to succeed without compelling expert evidence. Forgery cases typically require in-depth expert evidence to discharge the strong burden of proof. For example, in Patel v Patel  EWHC 133 (Ch), a forensic document examiner and handwriting expert, a forensic chemist and document analyst, and an expert in ink-testing were all instructed. Expert evidence showed that the Claimant had forged the will by using a paper pre-signed by the Deceased on top of which the will had subsequently been printed. The thin-layer chromatography evidence proved that the testatrix’s signature was more faded and had therefore been obtained earlier than the witnesses’ signatures. The judge found that on a balance of probabilities, the will had been forged.
However, the decision in Rainey v Weller  EWHC 2206 (Ch) shows that reliance on expert evidence may not be enough. In this case the court was asked to determine the validity of two wills allegedly made within about a month of each other, the latter being a homemade will. Both wills were examined by separate experts and were cross-referenced against examples of the Deceased’s signature and those of the son (the proponent of the later will). The Claimant’s expert was of the view that the Deceased signed the first will but not the second. In contrast, the Defendant’s expert did not consider the Deceased signed either will. The court considered the contradictory expert evidence and went on to consider the limited documentary evidence and the 13 witnesses that were called. Deputy Master Linwood found that the Deceased had signed the earlier professionally drafted will, relying on the solicitor’s will and LPA file. Whereas the Judge questioned the photo, provided by the Defendant, of the will on the day it was allegedly filed, based on the possibility that the meta data could have been altered and whether the model of iPhone, which the picture was allegedly taken on, was available at the time. This judgment indicates that although will forgery cases can be successful, more is required than just providing evidence from a handwriting expert. The expert evidence, although referred to was not pivotal to the outcome. The judgment highlights the need for careful presentation of the full range of evidence.
If the court finds that the will has been forged, it will be deemed invalid, and the estate will be distributed pursuant to Intestacy rules in the absence of any earlier valid will. However, for this to be achieved, strong evidence will be required to discharge the high standard of proof. In almost all cases, it will be worth considering any possible alternative grounds for challenging the validity of the will, which can be evidenced more straight-forwardly, require a lower standard of proof and will achieve the same outcome if the will is declared invalid.
Claims alleging fraud, forgery, or undue influence can be distressing for all parties involved, and given the seriousness of the allegations, it is important that specialist legal advice is obtained at the outset. At Moore Barlow, we have a specialist team who can advise on all aspects of contentious wills, whether you are the propounder of the will and defending a claim, or you are seeking to challenge its validity.