Posted: Friday, 4 January 2019 @ 13:43
Currently my firm is assisting a client in a not uncomplicated case where it is being alleged that a will(the one in which my client is a main beneficiary) is a forgery.
While this is a potentially dramatic development in this case, as in the instance of most will dispute cases it is worth stepping back and taking a calm look at things.
Proving a will forgery is very difficult to do.
Before we even look at the law on forgery, judges are very reluctant in the civil courts to make allegations against any party which totally degrade someone's character. (However, if they have to and forced into this position to make (bad) judgments of character, judges from my experience do not hold back in criticising a party because they can be annoyed that they have been put in that position)
Given the general personal reluctance of judges to attack a party's character and entertain allegations of will forgeries it is unsurprising that case law seeks a high burden to successfully proving will forgery.
For example, in a case decided in 2002 called Fuller v Fuller even though the joint expert found that there was "very strong positive evidence" of a forgery when the case ended up in the Court of Appeal the and the will was upheld. The allegation of forgery failed.
Yes there is case law which shows that forgery can be proved - Consider Supple v Pender & Another 2007 where there was overwhelming evidence of forgery and this was proved in Court.
To give context to an allegation of forgery, there is high costs risks penalties with an allegation of forgery. In Re Barton 1977 a widow was only awarded costs to a certain point as allegations of forgery were almost incredible thereafter.
Thus when a party makes an allegation of forgery which is often couched in an aggressive terms from a lawyer I tend not to be too phased with the knowledge that the law and the judges are sceptical and the costs risks for the other party high.