I Suspect a Will Has Been Forged. What Steps Can I take?

INTRODUCTION

Incidents of Will forgery or fraud seem to be on the increase these days, and becoming suspicious of this can be highly upsetting.

Fraud or forgery is not limited to just the document itself; a third party can be dishonest or misleading in other ways.

If you have reason to believe that a Will has been forged, falsified, or tampered with in any way, or if you suspect that fraudulent actions have an impact on your assets will be distributed after your death, you'll need to consider legal action.

The legal process is designed to determine the validity of the Will. If fraud or forgery is demonstrated, this can lead to severe consequences, such as invalidating the Will or reinstating a previous version in line with intestacy rules.

However, proving Will fraud or forgery can be complex and sound evidence needs to be produced to support your claims. This article highlights the difficulties that may arise when there is suspicion of Will fraud or forgery. In addition, it provides information on the legal requirements and the expert testimony required to resolve these matters successfully.

THE BURDEN OF PROOF

Will forgery is both a civil and a criminal offence. The criminal courts can pursue any party considered by the civil courts to have forged a Will.

You should bear in mind that it's notoriously difficult to prove that a Will has been forged, and it is the responsibility of the claimant (i.e., the person trying to prove the Will has been forged) to submit strong enough evidence.

• In a civil case, the claimant must convince the court that on the balance of probabilities, it is more likely than not that a Will has been forged. "More likely than not" usually means "more than 50% more likely."

• In a criminal case, the burden of proof is even higher than 50%. The court must be satisfied beyond reasonable doubt that forgery has taken place. Given this burden of higher proof, the consequences of a criminal conviction against the defendant are even higher.

PREVENTING FORGERY WHEN MAKING A WILL

• When you draw up a Will, the Testator (i.e., the Will writer) must sign the document before two witnesses.
• Each witness must also sign the document before the Testator and the other witness. In other words, three people are in the room when signing.
• Recording a Will in the presence of a lawyer will protect against forgery.

  
  

IS WILL FORGERY THE SAME AS WILL FRAUD?

No. They are not the same.

Will Forgery

A Will has been forged when an aspect of the document has been altered without the Testator's knowledge. In many cases, forgery involves a signature being forged.

But it's not always the case. For example, a forger knows that the Testator did not sign the Will before two witnesses, and the witnesses' signatures were added later. Or an individual can make a Will pretending to be somebody else.

Generally, Wills are forged due to some kind of family issue. But also bear in mind that fraudsters may target isolated elderly people who have no close relatives or friends so that they can gather the necessary knowledge to falsify a Will in their name deliberately.

As you can imagine, in such a case, there is generally no other relative to challenge the Will or make any claim concerning the Testator's wishes. Unfortunately, it happens.

Will Fraud

Someone commits Will fraud when they intentionally misrepresent the truth and cause another person to suffer losses because of that fabrication. A Will is considered fraudulent when the document has been manufactured, in whole or part, without the Testator's knowledge or consent.

Typically, the person committing fraud must make certain statements with the full knowledge that the statements are false, doesn't care whether they are true or false, and/or intends to make the Testator change their Will.

THREE TYPES OF FRAUD

For clarity, there are three types of fraud when it comes to writing a Will:

• Fraudulently CREATING a Will: In this instance, somebody can provide false or misleading information about the aspects of the Will or the Beneficiaries.

• Fraudulently EXECUTING a Will: A person can mislead the Executor of the Will concerning the contents or intentions of the document being signed.

• Fraudulently ADMINISTERING a Will: A Will might be legally drafted and executed. But it can still be carried out fraudulently. For example, if a family member discovers their inheritance has diminished, they might destroy or hide the Will. The Executor of the Will or personal representative might deliberately decrease the Estate's value to the legal Beneficiaries. 

HOW DO I KNOW IF A WILL HAS BEEN FORGED?

Here are some tell-tale signs that may indicate a Will has been forged:

• Indentations on the paper.
• The handwriting is not consistent (it's either connected and free-flowing or disconnected and disjointed).
• Pressure differences in the ink (in some areas, the ink is light, and in others, the ink is heavier).
• Inconsistent starting points of certain letters (for example, the letter 's' can be started at either end).

COLLECTING EXPERT EVIDENCE: WHAT TO DO NEXT

If your loved one has passed away and you have concerns that a signature or any other aspect of the document has been forged (or is invalid for any other reason), then in both civil and criminal cases, you (as the claimant) will need to rely on expert evidence.

The court can then consider this evidence in support of any claim. Forensic documentation experts can provide such expert evidence and will be regarded as critical to the outcome of any case.

These days, a wide range of techniques are used by forensic documentation experts. The following are some more popular methods used in civil and criminal cases.

• Electrostatic Detection Device (ESDA)
• Handwriting analysis
• Ink analysis
• Paper examination
• Signature analysis

However, to understand how laborious this exercise can be, a handwriting expert may require as many as 20 signatures to make a determined assessment. So be prepared for the long haul.

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