Will forgery is on the rise. Jordan Holland and Sam Chandler outline the facts in the recent case of Watts v Watts, and the lessons to learn for practitioners, on everything from expert witnesses to the burden of proof
The case of Watts v Watts  EWHC 668 (Ch) is the latest in a line of recent authorities in which the court has been asked to determine whether a will is in fact a forgery. In the past, cases involving allegations of will forgery were something that a practitioner might see once in a career, if at all, but it is clear that they are now becoming increasingly common. What’s more, the emotive and binary issues involved, together with allegations of dishonesty often involving close family members, mean that they can be extremely difficult to compromise in such disputes. It is therefore crucial that practitioners understand the unique difficulties and issues arising in such cases. Watts v Watts provides a cogent example of how these play out in practice.
Valerie Watts died from cancer in February 2011, leaving two adopted adult children, Gary and Christine. Gary was always close to his mother, and he visited her daily while she was in hospital. Christine’s relationship with her mother was strained, due to longstanding conflicts over Christine’s sexuality, and Valerie’s acrimonious divorce. Relations between Gary and Christine had also deteriorated by the time of Valerie’s death.
Forgery is a species of fraud, for which the evidence must be especially cogent in order to satisfy the court that the fraudulent activity has taken place. However, the standard of proof is no higher than the ordinary civil standard. This has understandably caused confusion.
It was against these troubled family dynamics that Valerie’s final will was purportedly executed, on 12 January 2011, whilst she was in a hospice receiving palliative care. Her sister, Yvonne Schooling, and her son, Gary, were present, but Christine was not. Earlier that day, Valerie had signed a ‘do not resuscitate’ (DNR) form. At Valerie’s direction, a DIY will pack was brought to her bedside by Yvonne. Upon realising that another attesting witness was required, Gary Watts left Valerie’s room, and found an on-duty nurse, nurse Jackie Brown, on the ward station. Accordingly, nurse Brown entered Valerie’s room and signed the document at Gary’s request.
Under the terms of that will, Christine was excluded from benefit, and Valerie’s estate was to pass in its entirety to Gary. This was a marked departure from Valerie’s previous will, executed in 1999, which left her estate to Christine and Gary in equal shares. Nonetheless, probate in respect of the 2011 will was granted in common form on 5 April 2011.
In October 2011, Christine brought a claim for a share of the estate under the Inheritance (Provision for Family and Dependants) Act 1975, on the basis that the purported will of 2011 failed to grant her reasonable financial provision. In December 2011, Christine Watts brought a further claim, alleging that the 2011 will was invalid. First, she alleged that Valerie’s signature was not genuine – it had been forged by Christine’s brother, Gary. Second, she claimed that even if Valerie had executed the will, she had not done so in the presence of both attesting witnesses. The will was therefore invalid in accordance with section 9 of the Wills Act 1837, which provides that the testator must sign the document “in the presence of two or more witnesses present at the same time”. Both claims were heard together, in February 2014, by Catherine Newman QC, sitting as a deputy High Court judge.
The witness evidence
Christine’s evidence in support of her probate claim was the testimony of nurse Brown. Some 10 months subsequent to the execution of the will, nurse Brown had been visited by Gary Watts, and notified of Christine’s prospective challenge. Gary had handed Nurse Brown a note which stated: “Valerie Watts dictated her wishes to her sister. Her sister wrote out the [illegible] read back to her in the presence of myself and her son and sister were present and then she signed.” Despite the content of that note, nurse Brown went on to claim that she had not previously been aware, and had not been informed, that the document was a will. She also maintained that at no point did she see Valerie sign the document, but instead saw Gary sign the will. Nurse Brown’s evidence was contradicted by Gary Watts and Yvonne Schooling, who both alleged that Valerie had signed the will herself, and that she had done so in the presence of both witnesses.
Christine also relied on the evidence of Dr Audrey Giles, a forensic document examiner, and a well-known expert witness in this field. Dr Giles concluded that there was “very strong positive evidence” that the signature was a forgery. The signature on the will diverged in letter formation, and also demonstrated a greater degree of pen control and fluency than displayed on the acknowledged samples, one of which had been retrieved from the do not resuscitate (DNR) form executed just hours before the purported execution of the will.
Gary relied on the report of Simone Tennant-Smith, a graphologist who found that there was “strong evidence” that the signature on the purported will belonged to Valerie. She claimed that the signature on the DNR form was “almost identical” to the signature on the 2011 will.
Catherine Newman QC pronounced in favour of the earlier 1999 will. Her decision was based primarily on the evidence provided by the three lay witnesses who had been party to preparation and execution of the will. The judge was clearly impressed by the evidence of nurse Brown, who she held to be a “respectable and educated person who clearly understood the importance of telling the truth in court”. Nurse Brown was independent, and had nothing to gain or lose from the outcome of the proceedings. The judge rejected the evidence of Yvonne Schooling, which she felt was undermined both by her inability to distinguish between her actual recollection of the events and the narrative she wished to give to the court, and by her palpable animosity towards Christine. As to Gary Watts, the judge found that he was an uncomfortable and anxious witness when describing the events surrounding the purported execution of the will, and was clearly motivated by his conviction that Christine did not deserve to inherit under their mother’s estate.
Accordingly, the judge found that the 2011 will was invalid on both grounds. She held that nurse Brown had not witnessed the execution of the will, and that Gary had forged Valerie’s signature on the will. She further held that nurse Brown was unaware as to the nature of the document she was signing, though she accepted that this was immaterial to the question of validity.
Proof and presumptions in will forgery claims
There has been some debate about the burden and the standard of proof in will forgery claims (see, for example, Supple v Pender  EWHC 829 (Ch)). Forgery is a species of fraud, for which the evidence must be especially cogent in order to satisfy the court that the fraudulent activity has taken place. However, the standard of proof is no higher than the ordinary civil standard. This has understandably caused confusion.
The correct approach is that set out by Lord Nicholls of Birkenhead in Re H  AC 563: “When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability… Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.”
While expert evidence is undoubtedly of secondary importance to the testimony of lay witnesses, it is important to start off the claim on the right foot, with a well-respected expert who has experience and credit in this field
While Re H was not a case that concerned allegations of forged wills, the words of Lord Nicholls have been cited with approval in the context of contentious probate litigation (see Supple v Pender, Haider v Syed  EWHC 4079 (Ch) and Vaccianna v Herod  All ER (D) 200 (Feb)). As Catherine Newman QC acknowledged at  of her judgment in Watts, the standard of proof remained the “ordinary civil standard”. Such an approach is consistent with settled principle.
Another concept much discussed in claims relating to the formal validity of wills is the “presumption of due execution”. The presumption dates back well into the 19th century, but a more recent formulation was expressed by the Court of Appeal in Sherrington v Sherrington  EWCA Civ 326: “In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator’s signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness.” The effect of the presumption is that, where a will appears to be validly executed by evidence of the document itself, such as an attestation clause, it will be presumed to have been validly executed. The rationale behind the presumption is straightforward – it serves to save wills where the attesting witnesses, who themselves may be deceased, are not available to prove the will. Without it, many wills would not be admitted to probate.
However, the force of the presumption must not be overstated. As Jules Sher QC held in Supple v Pender: “… I should presume that the will had been executed properly. That is the starting point in any case in which it is contended that a document has not been properly executed. At most, however, it provides a rebuttable presumption.”
It is also well established that the strength of the presumption is fact-specific. Where the circumstances relating to the preparation and execution of the will raise questions, the presumption may be weakened (see Vinnicombe v Butler (1864) 3 Sw & Tr 580) – for example, where a will is homemade, where the attesting witnesses are non-lawyers or inexperienced, or where the will is executed in some haste. Given the circumstances attending the preparation and execution of Valerie’s 2011 will, it is unsurprising that the judge, while acknowledging the presumption (see ), went on to find that the testimony of nurse Brown and the expert evidence of Dr Audrey Giles constituted sufficient rebuttal.
Expert evidence in forgery claims
Expert witnesses in this area are few and far between. The field is dominated by a well-known and busy minority, of which Dr Audrey Giles is perhaps the most renowned. As Mr Justice Barling observed in the recent case of Haider v Sayed, “it would be difficult for any expert to equal the extent of relevant experience and the professional distinctions of Dr Giles in the forensic examination of documents”. The experts working in this area also belong to differing schools of analysis – Simone Tennant-Smith practises as a graphologist, whereas Dr Audrey Giles practices as a forensic scientist. Interestingly, in Haider, Dr Giles was highly critical of graphology, describing it as a “pseudo-science” that was mainly directed to deriving a person’s characteristics from handwriting and not “a suitable background for the forensic examination of signatures”. A preference for the forensic school of analysis over graphology is, in our opinion, evident in the case law. Practitioners would therefore be wise to consider their choice of expert with due care.
However, the influence of expert evidence in such claims must not be overstated. Catherine Newman QC said that her evidence was “principally made” on the basis of the lay witness evidence (35). In Fuller v Strum  EWCA Civ 1879, the court went directly against the conclusion of Dr Giles, who was acting as a single joint expert. However, while clearly not determinative, a convincing report from a well-established and respected expert will undoubtedly strengthen one’s position.
The high evidential threshold means that forgery claims are difficult to prove. It appears, however, that they are becoming more common. Watts is just one decision in a spate of successful forgery challenges, a shift which must be due in part to the increasing prevalence of DIY wills, such as the WHSmith will pack brought to Valerie Watts’ bedside in January 2011.
What can practitioners learn from these recent decisions? First, such claims are highly unpredictable. They will rest almost exclusively on the court’s perception of conflicting factual evidence, as delivered from the witness box. It will be difficult to assess the merits of a claim until the trial is well under way, and the litigation risks have already been assumed.
Second, while expert evidence is undoubtedly of secondary importance to the testimony of lay witnesses, it is important to start off the claim on the right foot, with a well-respected expert who has experience and credit in this field.
Third, although the presumption of due execution provides a meaningful string in the bow of a defendant to a will forgery claim, it is nonetheless crucial to appreciate that it is merely a starting point for the court’s enquiry. Reliance on the presumption is unlikely to be successful in the face of strong evidence indicating that a will is a forgery.