A Judge has made a startling finding in a case about a forged Will which could lead to many more arguments about whether a Will is valid or not.

Prior to the case of Face v Cunningham [2020] EWHC 3119 (Ch) it had been understood in the legal world of will disputes that the heavy burden of proving an allegation of forgery or fraud rests with the person alleging it.

Forgery of a whole Will is very rare unless the Will is short, so the most common allegation of forgery is that the signature of the person making the will (the testator) has been forged. The argument is that the Will does not comply with section 9 of the Wills Act 1837. This provides that for a Will to be valid it must be in writing, signed by the testator (or someone else in his presence and at his direction) and duly witnessed. It’s always been seen as a difficult argument to allege forgery because there is a ‘presumption of due execution’, i.e if a Will appears to be valid on the face of it then it’s presumed to be valid unless it can be proved otherwise.

What was the background?

The case was heard over nine days in Liverpool between the 13^th and 23^rd October 2020. Donald Face died on 2 October 2017 leaving an estate worth about £650,000 which included properties in London and Norfolk. He had two daughters, Rebecca and Rowena and a son, Richard. Immediately after his death no Will was found. However, the youngest daughter, Rebecca, claimed to have found a photocopy of a Will, in a clear plastic wallet within a red plastic ring-binder under a bedspread, lying on a bed in one of the bedrooms at the Norfolk property on the night of 10 August 2018. The original, dated 7 September 2017 was never found. The copy Will made Rebecca the sole executrix of her father’s estate and left the whole of his estate to her alone.

Rebecca was the Claimant in the case, because she went to court to ‘propound the Will’ i.e. to ask the Court to accept that the copy Will she had found was valid.

Her siblings Rowena and Richard were the Defendants, and argued that the Will had been forged by Rebeca in collusion with the two witnesses who claimed to have witnessed their father’s signature on the Will.  They said that their father had died intestate (i.e. without a valid Will) and that under the intestacy rules, each of the three siblings were entitled to his estate in equal shares.

The two witnesses to the Will claimed that it had been executed in a ‘wills shop’ in Cambridge which they had visited in order to collect a leaflet about the services that were offered at the shop. They said that they met Mr Face in the shop, and he asked them to witness his signature of the Will (called ‘attesting’) which they agreed to do. They said that they had had not known Mr Face at any time before their meeting and had not seen him since.

What did the court decide?

The judge rejected the evidence of the witnesses. He found their evidence to be inherently incredible and was sure that it was pure fiction. One of the attesting witnesses had known Rebecca’s partner; they had both served in the army at the same time and the judge accepted the evidence of a witness who had located Facebook posts from the partner, which showed that he was trying to locate the attesting witness, on a closed army page, just a few months before the copy Will appeared.

The judge also totally rejected Rebecca’s evidence and found as a fact that she had forged the Will with the assistance of her partner and the attesting witnesses. It’s likely that her one third of the estate that she has inherited under the intestacy rules will now be spent largely on paying all the legal costs of the trial.

The Judge dismissed the claim to admit the copy Will as valid and ordered that a transcript of his judgment be sent to the Crown Prosecution Service.

Why is this case important?

The key issue was about ‘the burden of proof’ in relation to the allegation of forgery. Rebecca argued that the burden was on her siblings to prove forgery, because they were her accusers.

The judge took a different view. He decided that as section 9 of the Wills Act 1837 sets out the formal requirements for a Will to be valid, the burden of proof must rest on the party seeking to put forward (‘propound’) the Will to establish that it had been validly executed and witnessed.

This meant that in this case, the burden of proof was not on Rowena and Richard to prove that the 2017 Will was a forgery, but instead Rebecca bore the burden of proving that the 2017 Will had in fact been validly executed and witnessed.

The judge went on to draw a distinction between a situation where a will is challenged on grounds of fraud or undue influence and a situation where a will is challenged on grounds of forgery. Where there is an allegation of fraud or undue influence it was clear that the burden does rest with the person making the allegation.

What does it mean for cases involving an allegation of forgery?

In delivering judgment in this case, the Judge reversed the commonly and widely held view that the burden of proving forgery is on the person alleging it.

This seems on reflection logical and fair. It must be right that the party seeking to propound a Will must prove that the requirements have been complied with. The situation won’t arise in every case but where it is alleged that a Will is a forgery it will no longer be sufficient to rely on the ‘presumption of due execution’; the person arguing that the Will is valid will need to prove it.

Evidence will need to be provided about the circumstances surrounding the execution of the Will. It’s likely that this will mainly be provided by the attesting witnesses. If that evidence is strong, then it’s difficult to see that a forgery challenge will succeed unless, for example, there is compelling expert handwriting evidence.

So, the decision of Face v Cunningham does not mean that anyone who is unhappy about a Will can win by arguing that it must be forged, but it does help someone in this position. Previously a fraudster could, to a degree, sit back and say “Prove it!” to someone alleging forgery. Now they will have to take a more active role in proving their innocence and that is to be celebrated.

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Sarah Young – Director and Solicitor