Rita Barnsley was a vulnerable woman in her 80s who moved into a care home in the West Midlands in May 2020 and died in 2021. In that short period, two care home owners and a manager conspired to create a sham will in her name, leaving her estate to themselves and disinheriting Rita’s cousin. After Rita’s death, her cousin raised concerns about the will, leading to an investigation. All three individuals were recently imprisoned for fraud and forgery at Wolverhampton Crown Court.

How Difficult Is It to Prove a Forged Will?

The 2020 case of Face v Cunningham has made it easier to allege fraud or forgery. Previously, the heavy burden of proving that a will or signature was forged rested with the person alleging it.

Forgery of an entire will is rare unless the document is very short. More commonly, the allegation concerns the signature of the testator. The argument is that the will does not comply with section 9 of the Wills Act 1837, which requires a will to be in writing, signed by the testator (or someone else in their presence and at their direction), and duly witnessed.

Historically, challengers faced a significant hurdle because of the ‘presumption of due execution’: if a will looks valid on its face, it is treated as valid unless proven otherwise.

Why was Face v Cunningham so significant?

The key issue was the burden of proof. The judge held that because section 9 sets out the formal requirements for a valid will, the burden lies with the party seeking to propound the will to show that it was properly executed and witnessed.

A distinction was drawn:

• In cases involving fraud or undue influence, the burden still rests with the person alleging wrongdoing.
• In cases involving forgery, the position is different: the person putting forward the will must prove it was valid if sufficient doubt is raised.

What Does This Mean for Allegations of Forgery?

The judgment reversed the long-held assumption that the challenger must prove forgery. Instead:

• If a will appears valid, the challenger must present enough evidence to raise legitimate concerns.
• Once that threshold is met, the burden shifts to the person propounding the will to prove the will was not forged.

What Evidence Is Needed to Challenge a Will for Forgery?

Suspicion alone is not enough. Evidence must relate to the circumstances surrounding the execution of the will, including:

• Who signed the will
• Who witnessed it
• When and where it was signed

Much of this information will typically come from the witnesses. If their evidence is strong, a forgery challenge will fail unless compelling expert handwriting analysis contradicts it.

Anyone alleging that the deceased did not sign their will must gather as many handwriting samples as possible and consult an experienced handwriting expert.

This approach is fair: where there is genuine doubt, those seeking probate of a will should be required to prove compliance with the legal formalities rather than relying solely on presumptions.

Practical Implications for People Considering a Forgery Challenge

The Face v Cunningham decision does not mean that anyone unhappy with a will can succeed simply by alleging forgery. It does, however, offer additional support for those with legitimate concerns.

A person challenging a will must decide whether:

• to put the other party to the proof that the will is valid; or
• to assert positively that the signature is not the deceased’s and present a case of forgery.

This distinction matters. Allegations of forgery are taken extremely seriously. If such an allegation fails, the challenger may be ordered to pay not only their own legal costs but also those of the opposing party.

Call to Action

If you have concerns about the validity of a will or suspect forgery, seek specialist legal advice as soon as possible. Early guidance can protect your rights and help prevent costly disputes.

Sarah Young, Litigation Director