Will disputes on the rise - part 3

We listed the five grounds for challenging a will, namely: 

(i) the lack of proper execution.

(ii) the lack of mental capacity.

(iii) the lack of proper understanding and approval of the content of the will.

(iv) undue influence.

(v) forgery and fraud, 

and discussed the first three grounds in more detail. This month we will cover the last two grounds and how to protect from a challenge on these grounds. 

Challenging a will on the grounds of undue influence 

A challenge on these grounds would typically take place where a deceased made a new will (usually shortly before their death) in favour of one individual, substantially changing any previous will favouring, usually, several, or other, family members.

Clearly the outcome of any such challenge will always depend on the facts of the case, but undue influence is generally difficult to prove (and it must be proven by the person challenging the will) given that the only actual witness to it would have been the deceased. So, there are very few cases of successful challenges on these grounds. Examples of undue influence include:- threats to the deceased, blackmail, withdrawal of support or help and coercion.

Interestingly, while for lifetime gifts there is presumption of undue influence, there is no such presumption for wills. Furthermore, the "undue influence", e.g. coercion, must be proven by the person challenging the will beyond reasonable doubt.

In most such cases the testator would have been frail and/or easily manipulated and so a challenge would usually be combined with other grounds, e.g. the lack of mental capacity or the lack of proper understanding.

In the case of Schrader -v- Schrader, [2013] EWHC 466 (Ch) the judge, in finding that undue influence had been established, listed the factors on which he based his decision and these can be seen as a guidance on what a Court should take into account when considering undue influence. They are: 

• The vulnerability of the person making the will.
• The dependency on others.
• Whether a law firm or known solicitor was involved in the process of making the will.
• Whether there was a legitimate reason for the will being changed.
• The personality of others in the will making process, e.g. was there a dominant or forceful character?
• Previous will making patterns. 

The key element is the coercion, i.e. it must be shown that the vulnerable testator made the will only because they were coerced to do this, whether by threats or blackmail, not of their own volition. However, it is important to distinguish coercion from certain behaviours which may also lead to a change of a will but will not amount to undue influence. It is fairly common, after all, that some individuals will, for example, befriend an elderly person in the hope of being included in their will, or that some relatives may try some perhaps even forceful persuasion methods or constant pleading for help - such methods on their own will not amount to undue influence. 

Challenging a will on the grounds of forgery and fraud 

As mentioned last month, recently there have been several interesting cases involving will disputes on the grounds of forgery and/or fraud, with at least one surprising judgment.

When video witnessing of wills was introduced in 2021 to make it easier to execute a will during lockdown, there were some concerns that it could lead to forgeries and fraud, especially given that technology could be exploited, even to make deepfakes. Well, so far, we have not heard of such examples. However there is plenty of evidence of the good old-fashioned fraud.

There is, of course, an important distinction between forgery and fraud. Forgery means that the actual will document has been forged. As you can imagine, if it can be proved that a will has been forged, it will be invalid. A fraud, on the other hand, may well involve a validly executed will but one that was made after some fraudulent behaviour, e.g. an intentional deception made for personal gain, or to damage another individual.

In the case of forgery claims, it will be essential to obtain the opinion of a handwriting expert as to whether the testator’s signature/handwriting is genuine. The expert will want to see a considerable number of original samples of the deceased’s writing and signatures. If the expert produces a conclusive report, it is unlikely that a claim would succeed. However, the decision in Rainey v Weller [2021] EWHC 2206 (Ch) shows that reliance on expert evidence may not be enough. In this case the Court was asked to determine the validity of two wills allegedly made within about a month of each other, the latter being a homemade will. Both wills were examined by separate experts and were cross-referenced against examples of the deceased’s signature and those of the son (the proponent of the later will). One expert was of the view that the deceased signed the first will but not the second. In contrast, the expert for the opposing party did not consider the deceased signed either will. The judge had a difficult task considering the contradictory expert evidence and then having to consider the limited documentary evidence. 

The evidence that will be needed to prove the due execution of a will (or disprove it), will mainly take the form of witness and documentary evidence setting out the circumstances surrounding the execution of the will. It is likely that this will mainly be provided by the attesting witnesses (or the will drafter in circumstances where the testator did not draft the will). If the evidence is strong, then it could be difficult for the accuser to succeed without compelling expert evidence.

While generally, when disputing a will, the standard of proof required is normally on the balance of probabilities, given that a forgery is a form of fraud, and therefore a criminal matter, a higher level of proof will be required. Just how complicated this can be was shown in the case of Patel v Patel [2017] EWHC 133 (Ch), where a forensic document examiner and handwriting expert, a forensic chemist and document analyst, and an expert in ink-testing were all instructed. Expert evidence showed that the claimant had forged the will by using a paper pre-signed by the deceased on top of which the will had subsequently been printed. The thin-layer chromatography evidence proved that the testatrix’s signature was more faded and had therefore been obtained earlier than the witnesses’ signatures. The judge found that, on a balance of probabilities, the will had been forged. 

Now to the recent interesting decision. This was the case of Face v Cunningham [2020] EWHC 3119 (Ch). Interesting because the judge in this case apparently overturned the long-held view that a person who alleges that a will was forged bears the burden of proving it. 

The judge pronounced that the burden of proof must instead rest on the party propounding the will, as part of the formal requirement of proving the will was validly executed and witnessed. This was contrary to the previously settled view from the 2013 case of Haider v Syed [EWHC] 4079 (Ch). However, when looking at the facts of the case, it is clear that the judge merely went on to draw a distinction between a situation where a will is challenged on grounds of fraud or undue influence and a situation where a will is challenged on grounds of forgery. Where there is an allegation of fraud or undue influence the burden of proof still rests with the person making the allegation. But the ultimate burden of proving that a will is not a forgery must lie with the party who seeks to propound and rely on the will. 

The case concerned the estate of the late Donald Face who died in October 2017. The three parties in the case were his children: Rebeca, Rowena and Richard.  Rebeca brought a claim to propound an alleged photocopy of a will of her late father dated 7 September 2017 (“the 2017 Will”). Rebeca purported to have found the photocopy amongst Mr Face’s belongings. The original was never located. The 2017 Will made Rebeca the sole executrix and left the whole of the estate to her alone.  Rowena and Richard, on the other hand, both alleged that the Rebecca had forged the 2017 Will with the help of her partner and two attesting witnesses. If that was the case, their father died intestate and the estate should be distributed in accordance with intestacy rules (amongst all three children). 

The judge, having examined all the evidence, including the statements from the alleged “witnesses” to the 2017 Will, found that the testator’s will had been forged. The judge also directed that the transcript of his judgment should be referred to the Crown Prosecution Service to determine if criminal proceedings should be brought. If criminal proceedings are pursued in cases like these a conviction can result in a custodial sentence.

Finally, something you have probably never heard of - a fraudulent calumny. 

A fraudulent calumny occurs where a beneficiary of a will makes untrue comments to the testator about the character of another potential beneficiary in order to reduce their entitlement under the will. In some respects, this is similar to undue influence (and often a challenge would be made on those two grounds together or in the alternative). However, while undue influence requires the testator to change their will against their free will as a result of some improper conduct by the beneficiary of the new will, in fraudulent calumny cases, the testator’s mind is “poisoned” against a potential beneficiary such that the testator changes the will by their own free choice. 

A recent case where the Court examined this issue was Whittle v Whittle & Anor (Re Estate of Gerald Arthur Whittle) [2022] EWHC 925 (Ch). 

The case concerned the estate of Gerald Arthur Whittle (“Gerald”). Gerald made a will on 15 November 2016 and appointed his daughter (Sonia) and her partner (Ray), to be the co-executors of his will. Gerald passed away on 7 December 2016 and left the bulk of his assets to Sonia and Ray. He left only some personal possessions to his son David. 

David claimed that the will was procured on the basis of fraudulent calumny and/or undue influence, namely that Sonia and Ray made all kinds of false statements about David and his wife to Gerald, including false accusations of criminal and violent behaviour, and that because of those false statements his father more or less left him out of his will. 

The judge found that Gerald’s mind was poisoned by the false statements made by Sonia, based on evidence which indicated that there had been in fact a good relationship between Gerald and David. The judge also found it likely that the statements were objectively false, and that Sonia and Ray believed them to be false. On that basis, the judge found the will was procured by way of fraudulent calumny. 

The Court’s decision was that the will was invalid and David was appointed as administrator of Gerald’s estate with the estate passing under the intestacy rules. 

Comment

Needless to say, all Court decisions in cases involving a challenge to a will are made after very thorough examination of all the evidence and after hearing from often a multitude of witnesses, some more reliable than others. Judgments often run to tens of pages and read like a script of a soap opera, with families’ dirty washing for all to see. This is something to be aware of when contemplating a challenge to a will, in addition to the fact that these Court proceedings can get very expensive, and more than once an entire inheritance has been lost to the lawyers. All of this is also something to appreciate by those making a will. Ideally when you make a will, it should be safe from a challenge if you want to make sure (as far as you can) that your wishes will be complied with. Proper execution, evidence of mental capacity and a letter explaining the reasons for the particular will provisions will help avoid problems after your death. Making sure that your close relations/dependants are made aware of the will provisions and your reasons will also help. Although, of course, nothing will ever be guaranteed. Remember the words of Ralph Waldo Emerson: “When it comes to divide an estate, the politest men quarrel”.