Jack Dray, a contentious probate solicitor who specialises in fraud and forgery, offers guidance on contesting a forged Will and the ‘red fags’ to look out for.
What is needed for a valid Will?
The starting place for considering the law in relation to contesting a forged Will are the legal requirements for a Will to be legally valid.
A Will is a legal document that details how a person’s estate is to be distributed after their death. Under section 9 of the Wills Act 1837, there are certain formalities that a Will must follow to be valid. These formalities act as a safeguard to prevent people from attempting to forge a Will. They require that:
- The person writing the Will (the testator) must intend to make a Will.
- The Will is in writing.
- The will is signed by the testator and witnessed by at least two individuals who were present when the testator signed the Will.
Forged Wills
A forged Will is one that has been forged in its entirety, or in part. Typically, the person forging the Will does so in order to make a gain for themselves. Typical instances of forgery include:
- Faking the deceased’s signature.
- Faking the witnesses’ signatures.
- Altering clauses of the Will, or creating an entirely new Will without the deceased’s knowledge or consent.
Forgery is a particularly serious allegation as it involves criminal intent. It should not therefore be made without very good cause.
If you believe a Will has been forged, you may be able to bolster your legal challenge with additional allegations such as undue influence, lack of testamentary capacity, fraudulent calumny and lack of knowledge and approval.
‘Red Flags’ to look out for
When contesting a forged Will, the following scenarios can typically arise:
- The Will appears after the deceased’s death in the hands of someone who you would not normally expect to be in possession of the Will.
- An unexpected Will is found in an unusual place; such as a Doritos crisps bag as in the case of Davies v Henderson.
- Unusual behaviour by the forger shortly before or after the deceased’s death, such as extensively probing about the Will, especially regarding the date the Will was created
- A Will contains unexpected terms, or terms that do not keep with what the deceased promised when they were alive
- The deceased previously used solicitors to prepare their Will and the appearance of a new, DIY Will that supersedes any previous Wills.
- The witnesses to the Will are closely associated with the person producing the Will rather than the deceased.
Potential Outcomes
If the court agrees that the Will is a forgery, several outcomes are possible. The forged Will may be deemed invalid and the estate will be distributed according to the previous Will, if one exists. If no previous Will exists, the estate is distributed under the intestacy rules, which dictate how property is distributed when no valid Will is in place. Additionally, those involved in the forgery may face further legal consequences, including criminal prosecution.
Contesting a forged Will can raises difficult legal issues and it can frequently be challenging to obtain evidence of forgery.
For expert guidance on contesting a forged will speak to specialist solicitor, Jack Dray, who can provide an assessment of your case.