How many forged Wills are probated each year? We cannot know but it is worth remembering that Dr Harold Shipman ran out of luck this way: his last victim, Mrs Grundy, had seemingly made a will leaving him her estate and excluding her children, one of whom was a solicitor. Big mistake. The police were informed, the body exhumed, Shipman’s typewriter proved a perfect match and the rest is history.
Legally, a challenge to a Will based on forgery could not be simpler. The Wills Act 1837 provides that: “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…” etc. It follows that if the testator did not sign the Will, or, as a disabled person might, direct another to sign on his behalf, it is invalid.
However, the only part of a Will that must be written personally by a testator is the signature. If the signature is not that of the testator – generally proved by handwriting expert evidence – then the Will is obviously invalid. It is rare for forged Wills to be written out in full in handwriting claimed to be that of the testator for obvious reasons; more commonly, the document is typed and the signatures of the testator and/or those of the witnesses are forged.
But who bears the burden of proving that a Will is forged? The recent case of Face v Cunningham provides some guidance on this. Daughter Rebeca sought to prove what she asserted to be a copy of the last Will of her deceased father, Donald, that she had ‘found’, in the face of opposition from his other children who asserted that it was a forgery, concocted with the assistance of two friends acting as the attesting witnesses. The Judge dismissed the Will’s validity effortlessly: it was inherently incredible, pure fiction, a total fabrication he said. He “totally rejected” the evidence of the attesting witnesses, before referring the matter to the Crown Prosecution Service for further investigation, as robust a judicial finding of witness credibility as it is possible to imagine.
Against the run of prevailing case law and academic comment, to the effect that the burden of proof is on the person alleging forgery of a Will, the Judge said: “I do not accept that the burden is on a person alleging forgery to establish that fact … 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 … 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.”
Another recent decision is the case of Patel v Patel. Here, the signature on the Will was indeed that of the testator. The problem was that the rest of the Will was not on the paper when she signed it.
The case is both instructive as to the methods of exposing forgery and entertaining to read in full. Briefly, the Patel family owned a business empire with worldwide assets and which was managed, in the main, by three of Mrs Patel’s four sons, among them Girish, then a chartered accountant. It was established in evidence that, in the days before scanners, family members, Mrs Patel included, exchanged blank pre-signed letters, often on corporate headed notepaper, to facilitate business transactions.
The court rejected Girish’s case that Mrs Patel made the Will in 2005, leaving her entire estate to him and appointing him as sole executor. It found that he had used a piece of old, pre-signed office stationery, cut off the top and bottom to create the illusion of a blank sheet, and then photocopied onto the sheet a Will prepared by him so as to fit around Mrs Patel’s signature. He had then suborned two business associates to act as witnesses.
The court reached this conclusion by considering the fundamental implausibility of Girish’s case, a number of spectacular inconsistencies in his evidence and skillful cross-examination of him and the witnesses which demonstrated collusion in the preparation of pre-trial evidence. The judge stated in his judgment that they had all “lied brazenly” to the court. Together, this might well have been enough to defeat the Will but what left the issue beyond doubt was the expert evidence.
The handwriting evidence was clear: the signature on the Will was Mrs Patel’s, but it dated from before 2005, probably around 2001/02. This was the conclusion reached by comparing the signature with other known examples of Mrs Patel’s handwriting.
An ESDA test revealed the impression of another signature of Mrs Patel, invisible to the naked eye, indicating that the page was one of a number Mrs Patel had signed at the same time.
TLC analysis established that Mrs Patel’s signature on the Will had degraded by reason of exposure to light to a far greater extent than those of the witnesses to the Will, suggesting they had been written a substantial time apart.
Finally, toner/ink sequencing analysis showed evidence of photocopier toner on top of Mrs Patel’s signature, a fact for which there could be no honest explanation.
“There is a sufficiency in the world for man’s need but not for man’s greed.” (Mahatma Gandhi)