Warring siblings and the dangers of not being legally represented: The case of the missing original Will


23 February 2021

The case of Face v Cunningham & Anor [2020] was heard over a nine-day trial in Liverpool and concerned the estate of the late Mr Donald Face. The three parties were his children: Rebeca, Rowena and Richard. The claimant, Rebeca, brought a claim propounding an alleged lost Will: “the 2017 Will”. The original of the 2017 Will having allegedly been lost, but Rebeca claimed to have found a photocopy of it within her father’s papers.

Rowena, the first defendant, alleged that the 2017 Will had been forged by Rebeca along with the two attesting witnesses. It was her assertion that Mr Face died intestate and that under the intestacy rules, each of the three siblings were entitled to his estate in equal shares.

Richard, the second defendant, also disputed the validity of the 2017 Will. He initially sought to propound a Will made in 2016 but accepted at an early stage of the proceedings that there was no reliable evidence in support of his position and instead opted to contend, along with Rowena, that Mr Face died intestate.

One of the key issues addressed in the judgment was which party bore the burden of proof in relation to the allegation of forgery. The claimant accepted that the burden of proof was the normal civil standard of the balance of probabilities, but contended that the burden was on the defendants, in alleging forgery, to prove it.

The Burden of Proof

The judge held that as it was a formal requirement (under section 9 of the Wills Act 1837) for the validity of the Will that it was in writing, signed by the testator (or someone else in his presence and at his direction) and duly witnessed. The burden of proof must rest on the party seeking to propound the Will to establish that it had been validly executed and witnessed, i.e. Rebeca.

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

The judge drew 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. He held that the ultimate burden of proving that a Will is not a forgery must lie with the party seeking to propound the Will, as part of the formal requirements under the Wills Act 1837 of proving that the will was validly executed and witnessed. This is in contrast to an allegation of fraud or undue influence.

Outcome

The claim to propound the 2017 Will failed. The Judge concluded that “the claim by Rebeca [w]as totally without merit… It is based on a fabricated document.”

The case was then referred to the Crown Prosecution Service.

Lessons Learned

The obvious lesson is do not put forward a copy Will unless you are certain it can stand up to scrutiny. However, perhaps the better lesson is the Mr Face could have saved his children a lot of time, money and heartache if he had just put in place a professional Will and ensured it was stored properly.

It is also worth noting that litigation is always expensive, stressful and often unpredictable. No doubt compounded in this case by the fact that Rebeca was unrepresented. Had those involved had the benefit of good legal advice it is unlikely that this matter would ever have reached the steps of the court. It is always better to invest in sound advice at the outset rather than ploughing ahead and trying to navigate difficult waters without the benefit thereof.

This case is an extreme example, but if you do have any questions or concerns over a Will or an Estate do contact a member of our Contentious Trusts and Probate Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2021.

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