Forgery of a Will: Why does it happen and how is it proven?
Using Science to Protect the Vulnerable
In just the past 18 months GA Solicitors has been able to establish that at least one will was forged, and we have had suspicions about a small number of others. Proving a will has been forged is rarely straightforward as those involved will likely have taken steps to cover their tracks.
Why are people prepared to risk all and attempt to forge a will? Doubtless some do so in the mistaken belief that they are only setting in motion that which the testator truly intended. In other words, that what they are doing is not really a crime but are attempting to “make things right”. Others will have a purely fraudulent intent.
Greed aside, possible factors may include the apparently growing wealth gap between the generations and more disparate family structures. The fact that people are living longer and developing conditions such as dementia, or have become isolated due to failings in the care system, may account for some of the fraud that I have suspected and is reported.
As practitioners will know, the formal requirements for executing a will or codicil are set out in s9 of the Wills Act 1837 as amended by the Administration of Justice Act 1982. Often questions arise as to the validity of the testator’s signature or those of the witnesses to the will. Further, it may be felt that the will or codicil just does not “look right” with suspicion focussed on the circumstances surrounding the preparation and execution of the instrument.
Proving that a will or codicil is a forgery is unlikely to be established easily and the issue may ultimately only be resolved by forthright and determined cross examination at trial. The stakes are clearly very high for the parties concerned given the nature of any allegation of fraud and the consequences of failing to prove or disprove such a claim. It is also very important that the lawyers acting for the accuser take great care to ensure that they have good evidence to justify a plea of fraud.
In the case of The Treasury Solicitor v Doveton and another (2008) EWHC 2812 (Ch) the judge agreed with counsel for the claimant that the case against the defendant was overwhelming setting out in paragraph 129 (a) – (h) of his judgement his reasons for determining against the will. Perhaps the most interesting finding in this case was that the purported will appointed the defendant as executor at a time that he would have only been 14 months old! It is important at an early stage to prepare a complete timeline. The Doveton case also involved the matter of a typewriter ribbon and, whilst in some circumstances old fashioned typewriters may still be used, most are now produced on computer so a different approach to document examination is required.
Since the Doveton decision, forensic science has continued to advance and this was a major factor in my next case. Alexander Learmonth, a barrister who appeared for the defendant in the recent case of Patel v Patel (2017) EWHC 133 (Ch), gave a very interesting presentation to the 2017 Contentious Probate Conference held on 9th February. He emphasised the point that there is clearly more to forensic examination than mere handwriting analysis. Modern techniques may now assist the court get to the truth where simple handwriting analysis could not.
An interesting factor in Patel was not just the evidence of the witness but the experts involved in the case and their range of expertise. There was a forensic document examiner/handwriting expert; a forensic chemist/document analyst and an expert in the ink-testing of documents. Whilst the trial judge preferred to treat the evidence in relation to the toner/ink sequencing as inconclusive, he was willing to find in favour of the defendant in relation to thin-layer chromatography (a chemical analysis of the component dyes in the inks used in the deceased’s signature). He accepted that the signature of the deceased was not executed at the same time as that of the witnesses to the will. The cross examination of the witnesses in relation to one crucial event was also a major factor in determining the outcome.
Alexander Learmonth commented: “The difficulty in proving the forgery was that the signature was indeed a genuine signature of the testatrix, and we had to establish that she had signed blank papers, onto one of which the claimant had printed a will at a later date. So Robert Radley’s handwriting evidence showed that the signature dated from an earlier period in the testatrix’s life than the purported date of the will. The dye testing showed that the testatrix’s signature had faded due to light exposure whereas the witness’ had not, and the ESDA showed an imprint of another signature. But the most exciting part of the case was the revelation that the attesting witnesses and the claimant had all perjured themselves in evidence by denying meeting up the night before trial started! I doubt I will experience drama like that in the Chancery Division again.”
Patel and other similar cases emphasise that it is still very necessary to question every aspect of the instructions for, and preparation of, a disputed will or other testamentary instrument. A claim involving an allegation of forgery or fraud will also likely require practitioners to consider carefully whether science might assist to determine the outcome.