A will cannot be valid if it is a forgery. Forgery means falsely making or altering a written document or simulating the signing of another person’s name on a document.
B P Collins’ contentious probate team explains, in the context of a will, this means that either the provisions of the will have been altered without the testator’s (the person making the will) knowledge or the will has been signed by someone other than the testator and without the testator’s knowledge.
Is a document signed by someone other than the testator always a forgery?
No. There are circumstances where a will which has been signed by someone other than testator will be valid. This is where a will has been signed at the direction of the testator. This means that the testator:
- Is physically present at the signing of the will.
- Positively directs the will to be signed (meaning they did not just passively acquiesce).
- There must be two witnesses present.
- The testator must indicate to the witnesses that the signature was placed on the will at his direction.
This may occur where the testator is able to make a will but unable to sign it, for example if the testator was physically unable to make a mark on the will.
All other elements of validity must be present including that the testator must have testamentary capacity. If the other elements of validity are present and the will is signed as above, a will is valid even if not signed personally by the testator. This is distinct from a forgery where the testator is unaware that the signature has been made by another.
A will signed at the direction of the testator will also be signed in the signer’s name, with the will stating that they have signed at the testator’s direction, rather than someone else signing in the testator’s name in order to suggest that the testator had signed themselves.
How can you spot a forgery?
Forgery is often difficult to spot as the forger will most likely have gone to lengths to make it look legitimate by copying the signature carefully. In most cases, a forensic handwriting expert will be required to examine the document and compare the signature against signatures known to have been written by the testator and provide an expert opinion.
However, there are some common signs that a will might be a forgery:
- The provisions of the will are surprising and different to the terms of previous wills. Usually, forged wills will have been prepared to benefit those whom the testator would not normally include in their will.
- The signature does not match the testator’s usual signature.
- The witnesses to the will were not known to the testator and / or they cannot be found or behave evasively.
- The will has not been drafted by a solicitor.
- The will is found unexpectedly following the death of the testator.
There can be innocent explanations for these scenarios but the presence of one or more might prompt further investigations.
How can I report a forged will?
Forgery is a crime and can be reported to the police. The penalty for forgery is a fine or up to 10 years in prison.
However, in most cases, the parties will go through civil proceedings and prove the will was forged under the civil standard of proof. This is because the main objective is to have the estate administered properly and in accordance with the last valid will or the intestacy rules. Criminal sanctions are often a secondary concern. If the civil judge considers that there is sufficient evidence that the will is likely to be proven to be a forgery under the higher criminal standard, they may refer their judgment to the police and the police then might then take criminal action.
In the civil courts, the allegation of forgery becomes a will validity dispute, where the concerned party would ask for a declaration, pronouncing against the validity of the forged will and in favour of an earlier will (if there is one) or that the estate should be distributed under the intestacy rules.
Summary
If you suspect a will is a forgery, the first step is to investigate the validity of the document which may require making enquiries about how it was prepared and/or obtaining expert handwriting evidence. It may also be appropriate to prevent the will being lodged with the probate registry by entering a caveat against the estate.
Our contentious probate team provides specialist, tailored advice and support to individuals and families facing disputes.
If you require advice or guidance regarding claims to challenge a will, please contact the contentious probate team at B P Collins by emailing enquiries@bpcollins.co.uk or calling 01753 889995.
