Will forgery: how hard is it to prove?

How likely is a beneficiary to get away with forging a will for their own, or someone else’s, benefit?

Claims involving suspected forgery of wills are becoming more and more common in the world of contentious practitioners and the High Court was asked to determine this very issue in the recent case of Rainey –v- Weller [2021] EWHC 2206 (Ch).

The case involved the estate of Brenda Weller, a widow, mother, grandmother and great-grandmother who died on 24 November 2018. The key players in the case were Mrs Weller’s niece, Ann Rainey, who was the claimant in the proceedings (Ann), her three children, Paul, Stephen and Toni, the first to third defendants and her grandchildren, Francesca (Toni’s daughter), James and Arry (Paul’s sons), the fourth to sixth defendants. The matter before the Court was whether Mrs Weller’s last valid will was one dated 9 February 2018 (the February Will) or a later will made on 5 March 2018 (the March Will).

The February Will was prepared by Austin Ryder Solicitors following a meeting which Mrs Weller attended at their offices alone on 2 February 2018. It appointed Ann as executor and sole beneficiary of her estate. Mrs Weller attended Austin Ryder’s offices again to execute the February Will on 9 February 2018. At the same time, Mrs Weller gave instructions for a Lasting Power of Attorney to be prepared appointing Ann to manage her property and affairs (the LPA). This was signed by Mrs Wellar on 9 February 2018 and then again on 23 February 2018 after Ann and her daughter, Paula, who was to be the replacement attorney, had also signed. The LPA was registered with the Office of the Public Guardian in May 2018.

However, it was Paul’s position that his mother had asked him to make a will for her in March 2018 leaving her entire estate to Francesca, James and Arry, her ‘favourite grandchildren’, in equal shares. The March Will named Paul as executor and he and Toni claimed that they had witnessed it.

After Mrs Weller’s death, and on her prior instructions, Ann opened a suitcase (the Suitcase) in the presence of various family members which contained sealed envelopes addressed to Toni, Francesca, James, Arry and Olivia, Francesca’s daughter; they each contained £1,000 in cash. The Suitcase also contained some jewellery for Francesca and Olivia and a copy of the February Will. Neither Ann nor the defendants had any knowledge of the February Will before the Suitcase was opened.

Sometime following this, and without any reference to Ann, Paul applied for a grant of probate of the March Will and this was granted on 9 January 2019. Ann then appointed solicitors who obtained an expert’s report which confirmed that the signature on the March Will was not made by the same person whose signatures had been provided for comparison, namely Mrs Wellar. Proceedings were issued by Ann in April 2019 seeking a pronouncement in favour of the February Will. Although the defendants instructed solicitors to file a Defence, which was later amended, those solicitors ceased to act shortly thereafter and the defendants represented themselves at trial.

At the final hearing, Deputy Master Linwood gave careful consideration to all of the evidence in front of him including a total of 13 witnesses of fact and 4 experts before concluding that the March Will was a forgery and pronouncing in favour of the February Will. In reaching his decision, the Master had regard to the fact that where forgery of a will is alleged, the burden of proving that the will is genuine falls on the party seeking to propound that will and they must show, on the balance of probabilities, that the will was both duly executed and witnessed.

In this case, the Court preferred the evidence of Ann and the witnesses who were involved in the preparation of the February Will. It was clear from the testimonies they provided that Mrs Wellar had a strong and loving relationship with Ann and that, in this context, it was highly improbable and “verging on the impossible” that she would have changed her will in the very short period between the February Will being executed and the date of the March Will. Even if she had changed her mind, there was no explanation as to why she would not have instructed Austin Ryder to make the amendments. Furthermore, the circumstances surrounding Paul producing the March Will were suspicious and the Deputy Master found it “unbelievable” that he would not have safeguarded his mother’s will and produced it immediately following her death if it had existed at that time. The Court also found that Paul made deliberate attempts to manipulate the expert evidence, including forging Mrs Wellar’s signatures on various bank cards which were then produced for comparison.

Aside from the inevitable element of intrigue which comes hand in hand with uncovering deception and conspiracy, this was an interesting case because, although the views provided by the handwriting expert that there was “moderate to strong evidence that the signature on the [March Will] was not written by” Mrs Wellar was given due weight by the Court and was certainly an important factor in the Deputy Master reaching his decision, it was not pivotal to the final outcome of the case. Rather, the final judgment reflects the fact that the factual and documentary evidence available at a final hearing will play a central role in determining the Court’s decision on whether a forgery took place.

If you have any concerns about the circumstances in which a will was prepared, the specialist Contentious Trusts and Probate Team at Birketts can assist. If you would like to arrange an initial call to discuss matters, please contact Kate Harris or another member of our team.