If a will has been forged or subject to fraud then it will be deemed invalid – but proving an offence has been committed is difficult and often requires expert advice.
Due to the seriousness of the offence – forgery can carry a prison sentence of up to 10 years – the courts require substantial evidence to make a ruling.
Fraud
Fraud in the context of wills implies that some level of deceit has been used to alter the testator’s true intentions. At the most serious and obvious end of the scale, the fraud could involve someone impersonating the testator to create or alter a will without their knowledge or consent.
The most common example of fraud, though, is when a will has been destroyed or hidden after death. In this case either an earlier will is portrayed as being the last will of the deceased or it is claimed no will exists, resulting in the estate passing onto surviving relatives under the Intestacy Rules.
A will could also be classed as fraudulent if someone knows the will was not signed in the presence of two witnesses, as is legally required to make a will valid. Alternatively, it could be that someone knows the witnesses’ signatures were added at a later date, meaning the will was not properly executed and is, therefore, worthless.
There have also been examples where people have been tricked into putting their signature onto a will thinking they were signing something else.
Wills that distribute assets in a wildly different way than was expected – or in complete contrast to previous written wills – can provoke suspicions of fraud, but it can be very difficult to prove due to the underhand nature of the offence.
Evidence can include witness testimonies from people who witnessed the fraud or suspicious behaviour or records that show a valid will was destroyed or altered.
Courts can also look for patterns of deceptive behaviour, including reviewing communications for evidence of manipulation and assessing unusual changes in estate planning.
Forgery
Forgery is less deception and more about deliberate, physical acts to falsify legal documents. It could be as simple as forging the testator’s signature or as elaborate as fabricating an entire will. The implications of forgery are profound as the actions can dramatically change the true wishes of the will maker for the financial benefit of the offender.
Due to the nature of forgery, a handwriting expert is often required to analyse the signature on the will. Handwriting experts normally look at around 10 to 20 signatures that are known to be genuine and compare them with the suspicious signature on the will. Experts look for nuances and deviations from the original and produce a report with their findings but, even if it is found there are good grounds to suggest forgery has been committed, other factual evidence is still often required.
In Patel v Patel (2017) a forensic document examiner and handwriting expert, a forensic chemist and document analyst, and an expert in ink-testing were all instructed. The experts eventually concluded that the signature had been forged by putting a pre-signed piece of paper underneath the will.
Haider v Syed [2013] is a modern day example of an upheld forgery claim. Mrs Naseem Syed Khan died in 2008 and, as it was believed she did not have a will, her estate passed to her husband Mr Jafar Ali Khan. Mr Khan died three years later, leaving a valid will in favour of Mr Syed.
The claimant Mr Haider was Mrs Khan's nephew. He claimed that Mrs Khan had drafted a will on Christmas Day 2005 in the presence of three witnesses and he should have, therefore, inherited when she died. Mr Syed claimed her signature had been forged.
After careful examination of the signature, along with travel plans and previous stated intentions, the judge ruled that the will had indeed been forged and was to be ignored.
Burden of proof
When wills are disputed the standard of proof is normally on the balance of probabilities. That means if you can prove your case above 50%, you will succeed. However, as forgery and fraud are criminal matters, a higher level of proof is required. The general attitude is that the more serious the allegation, the less likely it is to have occurred and, therefore, the stronger the evidence required.
It was accepted that the burden of proving forgery rests with the party contesting the will - but this changed with the ruling by HHJ Hodge QC, who said the burden must rest on the party supporting the will to prove the will was executed and witnessed properly.
But HHJ Hodge QC distinguished between wills that are challenged on the basis of fraud or undue influence and those on the grounds of forgery. The burden of proof rests with the person making the allegation for fraud or undue influence.
If you suspect a will has been forged or fraud has occurred, it is important to seek expert advice as soon as possible in order to stand the best chance of reaching the higher burden of proof.
The best way to protect against contests on the grounds of fraud or forgery is to ask a solicitor to draft and store the will on your behalf. Solicitors will ask for ID to guard against impersonation and having the document securely stored protects against wills being found in the house after death and altered.
