Will fraud and forged wills are serious and can amount to a criminal offence under the Forgery and Counterfeiting Act 1981 and the Fraud Act 2006 and are grounds for challenging a will in the Civil Courts.
Fraud or forgery?
Fraud is a broad term that covers tampering with, altering or destroying a will. It includes fraudulent calumny (where someone poisons the testator’s mind with lies about a beneficiary) and undue influence (where someone exerts pressure so that the testator makes a will they would not otherwise make)
Forgery is where either the whole will, or part of it are fabricated
In both cases, the purpose is to circumvent the testator’s actual wishes in favour of the perpetrator of the fraud or forgery often meaning an intended beneficiary may lose out.
Types of will forgery
Forgery can take several forms. Even a small alteration can make a big difference to how an estate is distributed. Examples of will forgery are:
• Forged signatures – where the signature of the testator, the witnesses, or both are forged.
• Tampering – where provisions of the will are altered such as the who beneficiaries are, or sometimes whole pages removed or inserted
• Fabrication – where the whole will is faked
Proving will forgery
Traditionally, proving a forged will was difficult. The presumption is that if the will is valid on the face of it, the person alleging forgery must prove it. Gathering sufficient evidence to prove forgery could be difficult and sometimes expensive.
However, the case of Face v Cunningham in 2020, changed that position. The court made a distinction between fraud and forgery cases:
• In fraud and undue influence cases, the burden of proof remains on the person alleging that the will is not valid to prove it.
• In forgery cases, where ‘sufficient doubt’ is raised as to the validity of the will, the person claiming that the will is valid must prove it is genuine.
Proving that a will is genuine can be straightforward. If the will was prepared by a professional, this is usually sufficient. Alternatively, if the witnesses to the will are available and prepared to sign a statement or affidavit, this may be enough to prove that the testator signed their will.
Proving forgery can be a challenge and will sometimes require specialist analysis. However, in evidencing sufficient doubt, there may be indicators such as the testator’s signature being either different to their usual signature or identical to a sample signature (suggesting that it may have been traced or copied). Wills purporting to be professionally drafted but containing many errors, either of law or spelling and grammar may also indicate a forgery. Sometimes a will which contains unusual provisions or provisions which are radically different to a previous will with no explanation can raise doubt as to genuineness.
What does this mean in practice?
The presumption of validity still applies where a will appears valid.
However, if a challenger presents enough evidence to raise legitimate concerns that the will is forged, the burden of proof then shifts to the person asserting the will is genuine. If the will cannot be proved to be genuine, the court will declare the will invalid and the estate will pass either under the terms of an earlier, genuine will, or the intestacy rules.
In short, the ruling in in Face v Cunningham has made it easier to challenge a will on grounds of forgery. A challenger does not have to prove outright that the will is forged, it is enough to raise legitimate doubt about its validity.
How we can help
If you are worried that a loved one’s will may be forged, in whole or in part, or if you are defending such a claim, we can advise you on the best next steps.
Contact Emma Walker our Contentious Probate & Trusts Department Email: emma.Walker@daviesandpartners.com
Tel: 01452 612345
