Will – Validity – Allegation that will forgery
 EWHC 79 (Ch)
23 January 2014
Mr John Martin QC (Sitting as a Deputy Judge of the High Court)
Cheryl Jones (instructed by Hall & Co) for the claimant.
Penelope Reed QC (instructed by Cripps Harries Hall LLP) for E.
Elizabeth Weaver (instructed by Howard Kennedy FSI) for K.
Will – Validity. A dispute arose in respect of the deceased’s estate as to whether his true last will was a document made in 2008 (the 2008 document) or a will made in 1998 (the 1998 will). The Chancery Division rejected an assertion that the 2008 document had been forged and, applying settled law to the facts, pronounced in its favour and against the 1998 will.
The judgment is available at:  EWHC 79 (Ch)
The deceased died testate in 2008. An issue arose as to whether his true last will was a document dated 29 June 2008 (the 2008 document) or a will dated 21 October 1998 (the 1998 will). The claimant, a solicitor who was named as the executor in the 2008 document, contended that the deceased had given him instructions which he had incorporated into the will and that that document represented the deceased’s testamentary intentions. The claimant was supported by the second defendant, E, the deceased’s daughter by his first marriage, who was a beneficiary named in the 2008 document, but was not a beneficiary under the 1998 will. The claim was resisted by the first defendant, K, who was the adopted daughter of the deceased and his second wife. Under the terms of the 2008 document, K shared the deceased’s estate equally with E, but K was, in effect, the sole beneficiary of the deceased’s estate under the 1998 will. K contended that the 2008 document was a forgery, or that the deceased did not know or approve of its contents, and she claimed proof in solemn form of the 1998 will. No details were pleaded about who was said to have forged the 2008 document or the date on which it was alleged to have been forged. It was common ground that the deceased had had testamentary capacity both at the time of the 1998 will and the 2008 document.
The claimant applied to the court, seeking proof in solemn form of the 2008 document.
The issues for consideration were: (i) whether the 2008 document had been executed by the deceased, or whether it was a forgery; and (ii) if the 2008 document had been executed by the deceased, whether it had represented his genuine testamentary intentions. Consideration was given to s 9 of the Wills Act 1837, which provided that a will was not valid unless it was in writing and signed, with the intention of giving effect to the will, by the testator in the presence of two witnesses present at the same time, and the witnesses attested and signed the will.
The court ruled:
(1) It was settled law that the approach the court should adopt in respect of an allegation of forgery was first, to assess the lay evidence and then see whether or not the handwriting evidence supported the view formed of the lay evidence. The court had to be satisfied, on the balance of probabilities that, on the evidence, the occurrence of the event was more likely than not (see  of the judgment).
On the evidence, the suggestion that the 2008 document was a forgery would be rejected (see  of the judgment).
Supple v Pender  All ER (D) 195 (Feb) applied.
(2) When it was asserted that a testator did not know and approve of the contents of an apparent will was made, the burden of establishing that the testator did in fact know and approve of the contents of the document was on the person propounding the apparent will. The burden would ordinarily be discharged by proving testamentary capacity and due execution; but where the circumstances surrounding the execution of a will were such as to excite the suspicion of the court, the court would pronounce against the apparent will unless the suspicion was removed (see  of the judgment).
On the facts, there were no circumstances sufficient to excite the suspicion of the court. The deceased had given instructions for the 2008 document to the claimant, who had incorporated them into that document. The instructions had been simple and clear, and the deceased could not have failed to understand what he had been asking the claimant to do. There was nothing suspicious in the fact that the deceased had asked the claimant to draft the will or in the nature of the dispositions made by the 2008 document. On the facts, the deceased had known and approved of the contents of the 2008 document such that it had genuinely represented his testamentary intentions (see ,  of the judgment).
A pronouncement would be made in favour of the 2008 document and against the 1998 will, with a direction that the 2008 document be admitted to probate (see  of the judgment).
Fuller v Strum  2 All ER 87 applied; Gill v Woodall  All ER (D) 167 (Dec) applied.
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