What evidence of the forgery is required to set aside a will? Challenges to wills on the basis of forgery. The recent case of Rainey v Weller.

Setting aside a will on the basis of forgery is difficult. Even once you have evidence from a handwriting expert, the case is not always as straightforward as shown below:-

In the case of Rainey v Weller the court was asked to determine the validity of two wills allegedly made within about a month of each other. The first was made in February 2018 and appointed the Claimant, who was the niece of the Deceased, as co-executor and the sole beneficiary of the estate. It was prepared and witnessed by a firm of solicitors, in conjunction with a Lasting Power of Attorney appointing the Claimant as the Deceased’s attorney.  The second will, allegedly made in March 2018, was a home-made will prepared by the Deceased’s son.  Without telling anyone, the Deceased’s son made an application for a Grant of Probate on the basis of the March 2018 will. This prompted the Claimant to issue a claim alleging forgery.

Both wills were examined by separate experts and were cross-referenced against examples of the Deceased’s signature and those of the son.  The Claimant’s expert said that the February 2018 will was signed by the Deceased and that there was strong evidence that the March 2018 will was not signed by the Deceased.  In contrast, the Defendant’s expert found that there was only moderate evidence that the Deceased had signed either will. The Defendant would therefore take under an intestacy.

The court considered the contradictory expert evidence and went on to consider the limited documentary evidence and the 13 witnesses that were called.

After assessing all the evidence Deputy Master Linwood found that the February 2018 will was properly signed by the Deceased. This was supported by documentary evidence in the form of the solicitors’ will and LPA file and witness evidence provided by the solicitors.  He also placed reliance on the fact that the Deceased had appointed the Claimant as her attorney and executor, therefore indicating a strong level of trust in the Claimant.

In contrast the Defendant did not have any strong documentary evidence to rely on.  There was a picture of the will allegedly taken on the day the will was signed, but an expert confirmed how the photo’s metadata could have been manipulated. There was also a query as to whether the Defendant’s iPhone model was even available at the time the photo was taken.

The Deputy Master also referred to text messages that had been sent by family indicating a lack of trust by the Deceased and others of the Defendant.  There were also multiple references in oral evidence of the Deceased having an estranged relationship with the Defendant.

The Defendant relied on evidence from his 5 witnesses. But the Deputy Master was not convinced of what they said when set against the events that occurred.   In judgment he noted that they provided no explanation for the change in testamentary wishes in the short time frame between the two wills, or why the Deceased did not ask her solicitors to make the amendments.

Deputy Master Linwood also pointed out the Defendant had not provided evidence of the will template he had used or provided any evidence from his computer as to when the document was produced.   He therefore found that on the balance of probabilities the March 2018 will had not been signed by the Deceased.

This judgment indicates that although will forgery cases can be successful, more is required than just providing evidence from a handwriting expert.  The expert evidence, although referred to was not pivotal to the outcome.

The judgment highlights the need for careful presentation of the full range of evidence, including in this case text messages between family.

Case Citation: Rainey v Weller [2021] EWHC 2206 (CH)

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