Very few inheritance disputes where fraud or forgery is alleged end up in Court. So, a current High Court case in London is worthy of note.

What is the case about?

It concerns a 92-year-old former West End cabaret star being sued by her own son over claims she forged her husband’s will to scoop what is alleged to have been his £8million fortune.

Jobyna Watts inherited her husband Eustace Watts’s estate when he died in 2008. Their son, Carlton, 64, has now challenged Eustace’s will made in 2000, insisting that his mother has ‘defrauded my father’s estate’.

Carlton’s case is that a previous will from 1994 – which split everything equally between himself, his mother and his brother Fraser Watts – was the last true will of his father. He challenges the authenticity of witnesses’ signatures and the appearance of the writing on the will.

His barrister, Justin Holmes, highlighted evidence from a forensic expert who analysed the handwriting and raised concerns that the ‘pen pressure’ of the solicitor’s and witness’ signatures were surprisingly similar.

Mrs Watts’ barrister Matthew Tonnard said Carlton had been well provided for by his parents and lived with them as an adult until he was ‘gifted’ his own home by Eustace – but now had his ‘mind set’ against his mother.

Motivated by ‘spite and animosity’, he had even gone on to place a sign outside his house, which stated: ‘Jobyna Watts forged her husband’s will and stole his money.’

How hard is it to prove fraud/forgery in relation to a will?

What must be proved here is dishonesty. As a serious allegation it requires a high standard of proof.

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 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.

Forgery has always been seen as a difficult argument to run, 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.

In the 2020 case of Face v Cunningham, the Judge reversed the commonly and widely held view that the burden of proving forgery is on the person alleging it.

Now, 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 (the individuals who witnessed the person making the Will sign it). 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.

Previously a fraudster could say “prove it!” to someone alleging forgery. Now they will have to take a more active role in proving their innocence.

The Watts case has been adjourned part heard.  It will be interesting to see how the decision in Face influences the Judge. Will it make it more likely that Carlton – and others in a similar position to him –  will succeed in his challenge? Watch this space!

Sarah Young – Director