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.
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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