It is not uncommon for accusations that a Will is fraudulent to arise in contentious probate cases but it is extremely rare that these cases are successful. The reason being is ordinarily, in civil cases, the balance of probabilities is set very high.
Martin Oliver, Partner in our Contentious Probate team discusses the challenges that come with contesting a fraudulent Will, including the process to follow if you proceed with contesting the Will.
Is the signature on the Will fraudulent?
Often in cases where it is believed that a Will has been made fraudulently, it can be alleged that a signature has been forged which often brings into question the witnesses as to whether they were party to the forgery. This is very difficult to prove and it is worth noting that over the pass 100 years, only around five cases have proved forgery have taken place.
Another claim that potentially comes under fraud, known as fraudulent calumny, is when a third person, often the person who benefits through the Will, has drip fed 'poison over the heirs to the deceased.' This is essentially them telling lies about family members or beneficiaries to the extent that they no longer benefit in the Will. It is extremely difficult to succeed with such a claim.
What happens next?
If a client does make the decision to pursue a claim that a Will was made fraudulently, the first step to undertake is to get at least 10 to 15 signatures of the deceased (or photocopies if this is not available) that were made in and around the time that the forgery allegedly took place. They will then be sent off to a forensic handwriting expert who will then come to a conclusions, having produced a report, as to whether the signature is valid.
In this country there are only a handful of forensic handwriting experts that give evidence in contentious probate matters in courts. Therefore, it is imperative to instruct the right expert very early on in the case to look at whether fraud or fraudulent calumny has taken place.
This is a complex area of law so obtaining legal advice at an early stage is advised.
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