28 May 2021
Forged wills: who has the burden of proof?
When there is an allegation that a will has been forged, who has the burden of proof? Recently in Face v Cunningham & Anor , the Court had to decide this very issue. The case also provides a further insight into the factors that a court will consider when examining a will and the importance of the testimony of witnesses to a will, which the court described as “pure fiction” in this case.
Sadly, an allegation of a fabricated will is nothing new for contentious probate practitioners, and while it may sound like a dastardly deed only seen in movies, it is not uncommon for unexpected beneficiaries to brandish “updated” wills, which require further investigation.
The late Donald Charles Face (“Donald”) died at the beginning of October 2017, aged 73, leaving behind three adult children, Rebeca, Richard and Rowena.
Following his death, Rebeca, one of Donald’s two daughters, brought a claim seeking to propound a copy of an alleged will of her late father dated 7 September 2017 (“the 2017 will”). The will was handmade and the original had not been located. Rebeca claimed she found a photocopy of the will on 10 August 2018, which was lying on a bed at Donald’s home. It was also alleged that Donald travelled to Cambridge to sign the 2017 will, where both of the attesting witnesses lived.
Donald’s son and his other daughter, Rowena, contended that the 2017 will was a forgery, which had been fabricated by Rebeca, in collusion with the two attesting witnesses and Rebeca’s partner. Rowena maintained that her father died intestate (without a will), and therefore all three siblings were entitled to an equal share of Donald’s estate.
The 2017 will appointed Rebeca as executor and apart from a few nominal gifts to Donald’s grandchildren, the entire estate was left to Rebeca. The execution of the will was purported to have been witnessed by two friends of Rebeca and her partner.
The Court’s findings
The judge stated that in order for a will to be valid it is a requirement that (amongst other formalities) it must be in writing, signed by the testator and duly witnessed. Therefore, the burden must rest on the party putting forward a will to establish that it has been validly executed and witnessed. As a result, he found that the burden of proof lay with Rebeca to show that the will was valid on the “balance of probabilities” (i.e. 51% or more).
There were three main issues examined: the signature of the 2017 will, the evidence demonstrating Donald’s intention to prepare and execute a will, and the whereabouts of the two witnesses to the 2017 will.
In relation to the signature of the 2017 will, the parties instructed a single joint forensic document examiner. His expert opinion was inconclusive as to whether or not Donald had signed it. As such, the case turned largely on the reliability and credibility of the witnesses including, amongst others, the three children and the two attesting witnesses.
With regards to Donald’s intention to execute a will, the court was assisted by detailed journal entries that Donald had kept over a number of years. The journal contained evidence that Donald had had meetings with a solicitor, however there was no written entry confirming that he actually made a will. This was supported by trial evidence given by the solicitor himself, which confirmed that, although the solicitor had taken instructions from Donald in September 2016 and had prepared a draft will, Donald had never executed a will as far as the solicitor was aware. The judge considered it highly unlikely that Donald would have executed a will without using the services of his solicitor.
As to the evidence given by the two witnesses of the supposed 2017 will, the judge found this was inherently incredible and stated he was sure that it was “pure fiction”. Evidence from a third party had revealed that it was likely one of the witnesses had served with Rebeca’s partner in the Royal Electrical and Mechanical Engineers (“REME”). It was alleged that in July 2018, Rebeca’s partner had placed a social media post on a private REME Facebook site seeking to locate one of the witnesses in question. The judge indicated he was satisfied that through Rebeca’s partner, the two witnesses were enlisted to assist Rebeca in witnessing the 2017 will. The judge went on to say that he was satisfied between 23 July 2018 (the date of Rebeca’s partner’s social media posting) and 10 August 2018 (the date Rebeca allegedly discovered the copy 2017 will at Donald’s home) Rebeca and her partner conspired together with the witnesses to seek to pervert the course of justice, by producing a forged will which they falsely and knowingly represented to be Donald’s last will.
The judge’s findings were supported by the evidence from two of Donald’s good friends and neighbours. Both of these witnesses gave evidence, which the judge accepted, that Donald would never have travelled to Cambridge without telling them that he was going, or without telling them that he had been there upon his return.
Having heard the evidence, the judge was in no doubt that Rebeca’s claim was totally without merit and based on a fabricated document. The judge pronounced against the validity of the 2017 will and declared that Donald had died intestate. The judge also ordered that Rebeca should pay her siblings’ costs of the action and he further directed that a transcript of the judgment should be sent to the Crown Prosecution Service.
Forged or fabricated wills require the expertise of a contentious probate solicitor. Before taking the next step, contact our specialist team on 01753 889995 or email firstname.lastname@example.org to discuss your options.