It is extremely difficult to contest a Will on the grounds of forgery, despite it being both a criminal and civil offence.
In civil cases, the claimant must persuade the Court on the balance of probabilities that forgery or fraud happened (that is, by a margin of probability greater than 50%). The standard of proof is higher in criminal proceedings; the Court must be convinced beyond a reasonable doubt that fraud or forgery took place. The more serious consequences of a criminal conviction are reflected in the greater burden.
The onus of demonstrating that the Will is genuine usually rests upon the party attempting to advance the Will.,
In one recent instance, a son who found himself disinherited in his deceased father’s Will accused his own Mother of signatory fraud, but when the matter came to Court, he failed to offer up little more than circumstantial evidence to prove his claims, resulting in them being rejected outright.
But what can we learn from such cases?
Accusations
When Mr Eustace Watts died in 2008 aged 92, he left behind his wife of 45 years, Jobyna, to whom he bequeathed his entire estate, and two sons, Carlton and Fraser, who inherited nothing.
The following year Carlton Watts filed a police report alleging that his mother had committed money laundering and fraud, claiming that she had forged her husband’s signature on his most recent Will, which was dated 2000, in order to get sole access the deceased’s fortune.
Carlton aimed to prove that his father did not execute the 2000 version, thus rendering it invalid, and reinstate a previous version from 1994 which would have seen Mr Watt’s estate divided equally between his widow and two sons.
In Court, Carlton had instructed a Paper Scientist and Forensic Document Examiner to verify inconsistencies and similarities between Mrs Watt’s handwriting, that of the deceased, and the signatures in the Will, but the expert was discredited due to their lack of expertise in handwriting analysis, a failure to supply sufficient samples, and an inability to substantiate claims regarding copy alignment.
By contrast, a separate expert analysis presented to the Court by Mrs Watt’s legal team assessed 18 samples of the deceased’s and the defendant’s handwriting and signatures over a 65-year period, finding only natural variations, and concluding there were “no significant differences between the questioned and examined reference signatures of the deceased”.
Handwriting
Where there are claims like this, the analysis of professional experts who have been scientifically trained in handwriting recognition is crucial. Such experts should undertake rigorous testing to reveal whether or not a signature is genuine, as well as when, and how pen marks were made on the document.
The analysis would normally consider:
- Indentations and pen pressure
- Connection between letters or otherwise
- The momentum of the pen
- Where the signature started and where individual letters started (as people will differ in their approach to writing certain letter formations).
- Examining paper to see if different pages of a document were printed or written at different times or with different printers, or if any pages were switched around or changed.
When a signature is under inspection, at least two examples of handwriting are required as proof.
An example could be an existing signature from a passport, a V5 form for the DVLA, a tax return, or something else. The need for two pieces of proof derives from the fact that it’s common for a person’s signature to change slightly over time, but the more examples that can be obtained, the better, as this will give the expert a broader frame of reference.
Knowing the difference between a graphologist and a handwriting specialist is crucial to figuring out who fabricated a fraudulent signature. Graphologists, for example, seek signs about how someone was feeling when they wrote it, while handwriting specialists are good at spotting fraudulent signatures; both are vital clues to identify persons guilty of illegal activities, but it is important that only experts with the appropriate credentials are enlisted. If not, as in the case of Carlton Watts, their testimony could do more harm than good.
Discrediting witnesses
During his case, Carlton Watts made attempts to discredit the deceased’s solicitor, Sarah Evans, who drafted the 2000 Will, in order to prove its execution was fraudulent, but this was also unsuccessful.
The deceased’s instructions, according to Ms. Evans, were “clear and consistent.” He didn’t want Carlton to receive anything if Mrs Watts survived him; he wanted Mrs Watts to be the only beneficiary of his fortune as his survivor.
Carlton’s legal team had sought to get the judge to reject Ms Evan’s claim that she could remember such intimate details of meetings with Mr Watts 22 years previously on this basis that she described the deceased as being “short with a pot belly” when in fact he was closer to being 6ft tall.
However, the judge found that it was most likely that Ms Evan’s had confused the deceased with Fraser Watts, whose Will she had also executed, because both gentlemen were longstanding clients at the law firm where she worked and they would have had regular meetings around the office.
Furthermore, Carlton also found his own credibility up for debate when it was discovered that he had posted a large notice on his car that read “Jobyna Watts forged her husband’s will and stole his money”, despite the fact that the Police had questioned the elderly lady under caution upon Carlton’s initial complaint about her, and based on evidence, took no further action.
The Court was presented with email evidence in which Carlton’s own solicitor relayed a conversation they had held with the arresting police offer which stated:
“A question was raised as to why the Will was changed from 1994 which split the estate three ways to the 2000 Will. The answer given by your mother was that the Will was changed as your father had become fed up with you as he had set you up in business on three separate occasions, (the) last occasion being the setting up of a Driving School, but all the businesses failed.”
Fraser Watts also described some of his brother’s assertions regarding a Trust that he claimed their father had set up for his rental property interests in 1990 as “nonsense, absolute rubbish”. And the Court agreed, calling the claims ‘inconsistent’ and of ‘marginal relevance’.
Evidence
Sections 1 through 4 of the Forgery and Counterfeiting Act of 1981 define Will forgery as a crime that carries a maximum 10-year prison sentence, a large fine, or both. Nonetheless, it can be difficult to prove forgery and challenge a Will in court.
In addition to expert testimony, witness testimony on relevant subjects will be essential. This could involve details like what the testator may have told others about the preparation of their Will, or the testator’s prior experience with making Wills. The testimony of people who are allegedly involved in the scheme will be especially important in situations where fraud charges are being brought.
Handwriting experts and discrepancies between signatures may help tip the scales where there is suspicion of any falsification but without physical evidence proving any wrongdoing, it will be an uphill challenge to establish fraudulent behaviour.
In most cases, the verdict will rest on testimony, and whether or not the judge believes the witnesses to be credible and authentic. Relying on circumstantial evidence, emotional impact or hearsay will not hold any weight in Court, and such cases will normally be rejected outright, as was the situation with the Watts family.
From a legal perspective, it’s advisable, when changing a Will, to discuss your wishes with your loved ones first, especially if there are likely to be individuals who will be upset by your decisions. If this is not possible for whatever reason, attaching a ‘Letter of Wishes’ to your Will, explaining why you have taken such action, can ensure that it is enacted without compromising one’s intentions upon death.
Though not legally binding, a Letter of Wishes offers the testator an opportunity to set out their personal hopes or requirements, and how they foresee their wishes being carried out when they die. It offers clarity at what is often a time of confusion and heightened emotions, and it can help bereaved parties navigate any nasty surprises revealed in the Will itself.
If you require support amending or creating a Will, or even suspect fraudulent activity related to a loved one’s Will, please don’t hesitate to contact our expert contentious probate team for specialist, confidential advice.
