The Use Of Experts In Will Forgery Cases: Watts v Watts (2023)
There are many different reasons for contesting a will, these include:
- Incorrectly drafted wills
- Wills not being signed and witnessed in accordance with the law
- Coercion (undue influence) of the deceased when they signed the will
- The deceased lacking mental capacity when they made the will
- Forgery & fraud
By far one of the most difficult grounds to prove is that a Will was forged given the high burden of proof and elements of dishonesty required.
The starting point under section 9 of the Wills Act 1837 is that:
“No will shall be valid unless-
(a) It is in writing, and signed by the testator, or by some other person in his presence
and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the will; and
(c) The signature is made or acknowledged by the testator in the presence of two or
more witnesses present at the same time; and
(d) Each witness either-
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
If on the face of it a Will appears to have been validly executed then strong evidence is required to rebut this presumption.
In the recent case of Watts v Watts (2023), the court looked at the importance of expert evidence in such cases.
The matter related to the Estate of Mr Eustace Fitzgerald Watts. The Claimant was Carlton Watts, his son, and the Defendant was Jobyna Watts, his wife and mother to Carlton. There was also another son, Fraser Watts, who gave evidence for his mother.
Eustace made a Will in 2000 which left his entire estate to his wife and she was appointed the sole executrix. It was purported to be witnessed by Ms B Goodsire, a legal secretary and Ms Sarah Evans, a solicitor – both employed by Lane Heardman solicitors where the Will was prepared. Ms Goodsire had died by the time the matter came before the court.
Prior Wills had been made in 1988 and 1994.
Carlton alleged (through an expert report by Mr Douglas Cobb) that his father did not sign the Will and his signature had been forged.
The relationship between the parties was acrimonious with Carlton calling the police on his mother and his mother in return having obtained a non-molestation order against her son in 2011.
The claim was issued in April 2020, heard by the court in October 2022 and February 2023 before judgment was handed down on 3 April 2023.
Mr Cobb, Carlton’s expert, produced 3 reports. Mr Michael Handy, acting for Jobyna, produced one report in response.
The judge was critical of Mr Cobb’s evidence in that:
- his CV did not show he had ever carried out a traditional handwriting analysis
- he only referred to one sample of Jobyna’s signature
- no consideration was given (or analysis undertaken) of samples of Eustace’s handwriting and signatures
- he was confused, inconsistent, and unable to explain the basis for his opinions during cross examination
As such the judge found in favour of Jobyna and concluded the Will had not been forged.
If you wish to successfully set aside a Will on the grounds of forgery you must carefully consider your case and seek appropriate advice early on.
Wills drafted by a solicitor carry a much higher burden to set aside given that they are officers of the court and adhere to high professional standards.
You also need to ensure you have the right expert on your side as much of the factual witnesses in Watts v Watts (2023) only provided circumstantial evidence of minor significance, so a court is going to place substantial weight on the expert evidence you rely on.
The findings/conclusions made in reports need to address the actual question as to whether the Will was a forgery or not.