A solicitor gives legal advice to a smiling young couple

Wills and fraud: the courts’ approach and how to avoid false allegations

Crime statistics show a general downward trend, with reported crime falling by 10% in 2012-13. Fraud is, however, a category of crime that is defying this welcome development with an increase by 20% over the same period. Fraud encompasses various types of online and internet crime and also includes forgery, which often involves faking a document or a false signature on a document.

One of the most important financial documents that anyone can draw up is a Will and there have been some notorious examples of Will forgery over the years. The serial killer, Dr Harold Shipman, for example, as well as murdering a number of his patients, also forged the Will of at least one of them and a few years ago the courts heard a case involving a deceased wealthy businessman where both his wife and mistress forged Wills in an effort to benefit from his estate.

Nicolas Christou’s will and forgery allegations

In a recent High Court case involving allegations of a forged Will, the judge set out how the courts will approach such claims. The case concerned a Mr Nicholas Christou, a Greek-Cypriot by birth who had lived in the UK for many years. Mr Christou had two daughters, Eleni from his first marriage and Katerina from his second marriage. In 1998 he made a Will which left his entire estate to Katerina but, some 5 months before his death in 2008, Mr Christou made a new Will benefitting both his daughters equally. Katerina asserted that the later Will was a forgery and that the 1998 Will should be admitted to probate. The 2008 Will had been professionally drawn up by a solicitor and distant relative of the family.

The court’s approach

The court declared that in assessing allegations of forgery it would make its decision on the balance of probabilities, and in doing so would take into account that the more serious the allegation, the less likely it is to have occurred. As stated in a previous case, “The more improbable the event, the stronger must be the evidence that it did occur”.

The judge, Mr John Martin QC, explained that in deciding whether the Will was forged he would first assess the lay evidence, and then see whether the evidence from a handwriting expert supported the view obtained by the court from its consideration of the lay evidence.

In the case of Mr Christou’s Will, the judge found the evidence of the solicitor who prepared the document and its witnesses to be credible. Although the expert handwriting evidence raised a possibility that the signature on the 2008 Will was not genuine, this was only a weak possibility. Taking into consideration all the evidence the judge found that the Will was not forged and should be admitted to probate.

How to minimise the chances of false allegations

It is clear that the best way of avoiding unfounded allegations of forgery, as occurred in this case, is to have a Will draw up professionally and, ideally, for it to be executed in the solicitor’s office with witnesses supplied from the firm. It is very difficult to see how an allegation of forgery could be substantiated against a Will drawn up in such circumstances.

The Will might still be challenged on the grounds of incapacity of the testator or lack of knowledge and approval of the Will by the testator. However, a solicitor drawing up a Will will obtain a medical opinion as to capacity if there is any doubt about this, and contemporaneous file notes, and the testimony of the solicitor supervising the Will’s execution, would be invaluable in providing evidence as to the testator’s approval of the Will’s contents.

By comparison a homemade Will is unlikely to benefit from any kind of written evidence as to the circumstances of its execution, and proving the validity of the Will in these circumstances will depend on the evidence of its witnesses, perhaps requested many years after the event from people who it might not be possible to trace.