What evidence of a will forgery is required to set aside a will?

In the case of Rainey v Weller [2021] EWHC 2206 (Ch), the court was asked to determine of the validity of two wills allegedly made by the deceased within one month of each other. In forgery cases, the key issue is whether the will was signed by the testator or not but as this case demonstrates, it is usually not possible to look at only this issue in isolation.

The first will was prepared in February 2018 by a firm of solicitors, and appointed the deceased’s niece (the claimant) as the co-executor and sole beneficiary. The second will, made in March 2018 was a homemade will prepared by the deceased’s son. The March will appointed the son as sole executor and bequeathed the estate equally to three of the deceased’s grandchildren.  Without telling anyone, the son applied for a Grant of Probate in respect of the March will, which prompted the claimant to issue a claim alleging forgery against the son (the defendant).

The claimant and defendant’s handwriting experts separately examined both wills, and examples of the deceased’s signature were compared to the son’s signatures. The claimant’s expert concluded that the March will was not signed by the deceased and the defendant’s expert decided that there was only moderate evidence that the deceased had signed either will. The court therefore looked at all of the circumstances surrounding the making of the wills and heard evidence from 13 witnesses over the course of a three day trial.

In deciding the case, the court took into account a veritable smorgasbord of evidence in addition to the evidence from the handwriting experts, including:

• the metadata from a smartphone belonging to the deceased’s son who had allegedly taken a photograph of the March will on the date it was executed;
• the delay in which the March will was produced by the son;
• a secret suitcase left by the deceased containing cash legacies, chattels and a copy of the February will, evidencing the deceased’s meticulous approach to resolve her affairs;
• additional expert evidence that concluded the deceased’s son had sent an empty envelope to the claimant’s solicitors in an attempt to withhold evidence and mislead the expert; and
• text messages between a witness and the deceased, and oral evidence of witnesses during the trial that indicated the deceased did not trust her children.

Deputy Master Linwood concluded on the balance of probabilities that the March 2018 will had not been signed by the deceased. The judge found that it was highly improbable that the deceased would have changed her wishes in a four week period, and it did not make sense that she did not go back to her solicitors to amend the will.

The case demonstrates the wide-ranging evidence the court will take into account when deciding a forgery case. To prove a forgery, it is not always as straightforward as having evidence from a handwriting expert which supports your case.  Experts can and do disagree, and if they do, the court will look at the wider evidence which can result in costly court proceedings.