Posted: Friday, 4 January 2019 @ 13:43
As this reported case shows will forgery does happen - and it can be done by solicitors and judges.
By law there is a high burden of proof on someone to successfully allege will fraud.
Civil courts are to be reluctant to find forgery. A case in point is Fuller v Strum 2002 1WLR 1097 - though the joint expert found that there was strong evidence of forgery the first instance court found that it was not a forgery but the testator lacked knowledge and approval. This decision was set aside in the Court of Appeal and the will upheld.
Generally fraud is hard to prove and often you are in the hands of handwriting experts regarding the signature.
In addition to the evidence regarding the signature, the Court may take into account other factors when determining whether the document is a forgery (if this is alleged).
a). The form of the documents - was it handwritten? Is it like a will?
b) The date of the possible forgery -.How close is the purported will to any previous will?
c) . The choice of witnesses - Who are they? Are they independent? Can they be traced?
In the event that a handwriting expert is instructed and alleges that it is not the person's signature it would be open to the Court to find that it is a forgery, although as noted above they are reluctant to do so and generally require a high degree of evidence before doing so.
A finding of this nature could have a number of repercussions for someone (and anyone else asserting that it is a valid document or anyone who is found to have played a part in its creation or had a knowledge of it being forged).
If such a finding is made, a party is likely to be penalised in costs within the proceedings. This is likely to mean bearing her own costs as well as those of the Defendants on an indemnity basis.
In addition, the litigating party (and anyone who is found to have created the forged document or knew it to be forged) may well face allegations of contempt of court and/or a prosecution under the Counterfeiting and Forgery Act 1981; a conviction under which may result in a custodial sentence as what happened in the case of the ex solicitor and Judge above.