Setting Aside a Will – Fraud and Forgery

Setting Aside a Will – Fraud and Forgery

These are serious allegations which should not be made lightly. The most common forms are:

  • Forgery – for example of the testator’s signature or advancing a Will known to be false
  • Fraudulent calumny whereby the testator’s mind is dishonestly poisoned against a third party who would benefit from the Will.

Related articles are:


In a civil case the standard of proof is the balance of probabilities as opposed to beyond reasonable doubt which is required in criminal matters. Nevertheless a high degree of proof is still necessary to establish fraud. The more serious the allegation the stronger the evidence likely to be needed to prove it.

Most cases involving allegations of forgery require evidence from a forensic handwriting expert. A graphologist has different expertise and is unlikely to be suitable. Rarely will the expert give a conclusive answer. They tend to use a scale to represent their findings between conclusive or strong evidence that it is the signature of the testator through moderate and weak, no evidence either way, weak evidence of simulation to moderate and strong conclusive evidence that it is so.

The forensic expert will need to see the original document and sufficient known contemporaneous comparators of the signature often 15 to 20. The expert will look at the fine details – for example the construction of letters, pen pressure, fluency, spontaneity and line quality. An expert may be able to discern whether the signature coincides with the purported date of the Will.

No one produces exactly the same signature twice. The standard of signature may deteriorate due to age, health, visual impairment, confusion. Even so, an examination as to the authenticity of the signature can still be made.

Even if the signature is genuine, the document may not be

Even if the signature is genuine, the document may not be. The forensic expert will look at the document as a whole and may make enquiries regarding:

  • Paper composition and when that was first available
  • Alignment of text including font size, availability and spacing
  • Printer inks availability, aging and fading
  • When a particular Will precedent first became available
  • Whether the paper has been trimmed for example to remove the header or footer
  • Whether the toner was applied before the signature ink
  • ESDA to detect indented writing impressions not visible on ordinary observation
  • Any obliteration or alteration or insertion of pages


The Court will also expect to hear from the attesting witnesses. Often the Court will prefer the evidence of witnesses present when the Will was signed over that of the expert. It is therefore necessary to prove the attesting witnesses were either duped in some way or involved in the fraud. In the case Re Whelen (Deceased) 2015, the witnesses believed they had witnessed the Will of someone other than the actual testator. This was a homemade Will which made it more susceptible to challenge. There is a presumption that a Will has been validly executed. The degree of evidence required to rebut this depends on the circumstances of the case and the evidence as to the facts in which it was signed.

By Sarah Payne, Litigation Solicitor

Setting Aside a Will – Undue Influence

Setting Aside a Will – Undue Influence

One way to challenge the validity of a Will is to allege that undue influence was exercised over the Testator. Related articles are:

The burden of proving undue influence rests with the party making the assertion. It is a high burden. One of the difficulties will be the absence of the chief witness namely the Testator.

Often when one child stands to inherit the whole or majority of the Estate, their siblings will assert that the Testator has been persuaded by the inheriting child to alter their Will, particularly when the children have been led to believe they will inherit equal shares of their parent’s Estate. The child who stands to benefit may have visited the Testator more frequently and/or provided help with day to day living. The others will feel that child was well placed to whisper in the Testator’s ear.

Mere influence is not sufficient

Mere influence however is not sufficient to overturn a Will; that influence must be undue. An example of undue influence is the frail, elderly Testator living alone fearful of one child who makes untruthful allegations against the others causing the Testator’s own discretion and judgment to be overborne. Another example is the carer who isolates the elderly and frail from friends and family thereby making that person dependent upon the carer such that the Testator will do whatever is necessary to please the carer.

Solicitors when preparing a Will, if concerned about whether or not the Testator’s true wishes are being put forward, will usually insist on seeing the Testator alone and will investigate the reasons behind any change of heart as against the content of any previous Will. Nevertheless if the Testator is staunch and forthright in their instructions, the solicitor is less likely to identify any ulterior motives.

An unsuccessful plea of undue influence in contentious probate proceedings generally leads to an adverse Costs Order.

What is undue influence?

In cases where a Claimant seeks to set aside a Will on the basis of undue influence, the Claimant must be able to prove that:

  • the Defendant was in a position to exercise influence;
  • the Defendant did exercise influence over the Testator;
  • the influence so exercised was undue;
  • the undue influence was exercised in relation to the disputed Will; and
  • it was by means of the exercise of that undue influence that the disputed Will came to be executed.

Undue influence exerted for the benefit of someone other than the person exerting the influence could also result in a Will being set aside.

The Court is likely to be assisted by the evidence of:

  • witnesses who knew the Testator, particularly old friends and neighbours;
  • medical evidence as to the Testator’s physical, emotional or mental frailty;
  • carers and social workers (assuming they are not involved in the claim);
  • Relations (although evidence of family members can be coloured by family disputes);
  • Solicitors who prepared the Will.

By Sarah Payne, Litigation Solicitor at Cambridge solicitors Barr Ellison

Setting Aside a Will – Lack of Capacity

Setting Aside a Will – Lack of Capacity

One way in which to challenge the validity of a Will is to allege the testator did not have capacity to make it. Related articles are:

Any person who is over the age of 18 and of sound disposing mind may make a Will.

Disputes about whether the testator has capacity to make a Will either when giving instructions for it or upon signing are increasing. People are living longer and more are developing some form of dementia. Research for Dementia UK indicates that there are hundreds of thousands of people suffering from dementia in the UK of which the greater part are 65 years or older.

Lack of Capacity

A lack of capacity can arise from head injuries, substance abuse, psychiatric disorders as well as dementia and other medical conditions.

The test of capacity in probate actions remains that set down in 1870 by the case of Banks v Goodfellow. The testator in this case had been confined to a lunatic asylum for some months. Upon discharge he was convinced that he was being pursued. He managed his own financial affairs and gave instructions for a Will. The Court found his Will to be valid because the delusions from which he suffered had no influence over his making the Will.

Test of Capacity

The test laid down in this case is in essence the testator shall understand:

  • The nature of the act and its effects. This does not require the testator to have capacity for all purposes merely for making a Will and the complexity of the Will will be relevant here.
  • The extent of the property of which he is disposing. This does not mean the testator must be able to compile an inventory of his assets. A general idea is good enough.
  • The claims to which he ought to give effect and to comprehend those. So can the testator recall those who are likely to have a claim and appreciate that some claimants may have a greater claim than do others.

In addition the Testator must not be influenced by any disorder of the mind, such that when disposing of his property he does things which in sound mind he would not.

Presumption of Capacity

Unless the Will is irrational on its face, the Court will presume capacity. If there is raised a real doubt (supported by evidence) as to capacity, then the burden of proving capacity falls on those seeking to prove the Will.

The Court is likely is to be assisted by the evidence of:

  • Statements made by the testator at the time of making his Will
  • Evidence of any witnesses to the testator’s signature
  • Evidence from the solicitor who prepared the Will
  • The extent to which the Will accords with the testator’s character, background and previous Wills
  • The testator’s conduct and general habits
  • The treatment of the testator by friends and relatives
  • Expert evidence from medical practitioners such as a GP or psychiatric geriatrician.

By Sarah Payne, Litigation Solicitor

What can be done for those left out of a Will or on Intestacy

What can be done for those left out of a Will or on Intestacy

As a general rule, any person is free to leave their estate as they see fit.  However, that does not prevent the provisions of their Will from being challenged after death if someone is left out of a Will.  Even where an estate is intestate (there is no Will), the statutory provision made in default can be challenged. 

In recent times, more people cohabit rather than marry and second marriages or relationships are commonplace. 

Where there are children from a previous relationship, the testator is frequently torn between a desire for their estate ultimately to pass to them rather than outright to their new partner but may wish to provide for that partner during their lifetime.  A life interest is often used to address this problem.  Such an arrangement may not constitute reasonable provision for the surviving spouse or partner and is open to challenge under the Inheritance Provision for Family and Dependants Act 1975. This is just one example of where the adequacy of provision can be called into question. 

The Court in considering these applications has to look at a range of factors: 

  • The financial needs and resources of the Applicant, any other Applicant, and the Beneficiaries 
  • The obligation of the deceased towards the Applicant(s) and Beneficiaries 
  • The size and nature of the net Estate 
  • Any disabilities of the Applicant(s) or Beneficiaries 
  • Any other relevant matter including conduct 

    The test for a cohabitee is set higher than for a surviving spouse

    A surviving spouse must establish if the Will or Intestacy fails to make reasonable provision. A surviving partner (not married but living as husband and wife in the same household for two years prior to death) has to prove that this is not a reasonable provision for their maintenance. The latter is a higher standard. 

    There are other categories of Applicant: children, those treated as a child of the family by the deceased, and dependents being those maintained wholly or partly by the deceased immediately prior to death.  Again these categories also have to prove that the Will or intestacy fails to make reasonable provision for their maintenance.  Claims by these other types of applicants tend to be more difficult to prove but with the necessary evidence can still be pursued. 

    The Court has to balance the interest of all the parties. 

    Testators wishing to exclude a legitimate Applicant should leave a note of their reasons

    A testator desirous of excluding any legitimate Applicant should leave a note of their reasons alongside their Will as this will be useful when considering the merits of any claim. The beneficiaries are usually concerned to see the terms of the Will are implemented and take the view the receipt of a claim undermines what the testator intended. The potential impact of legal costs upon the Estate available for distribution must also be kept in mind. 

    There are very strict time limits for claims of this nature so prompt advice is important.  We act on behalf of Applicants, Beneficiaries, and Personal Representatives although this last category generally adopt a neutral role unless otherwise interested.  Many of these cases are suitable for alternative dispute resolution such as mediation and we can assist with that as well. 

    By Sarah Payne, Litigation Solicitor