HOW TO CONTEST A WILL – WHO HAS THE BURDEN OF PROVING A WILL ALLEGED TO BE A FORGERY
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss who has the burden of proving a Will is valid when it has been alleged that the Will is a forgery
Why is the burden of proof important in Will dispute and Will contest claims and what is it?
The burden of proof is simply the question of which party to a Will Dispute, Will claim or Will contest claim is required to prove that the Will is valid. This, by its nature means, that when a Will is “unofficially” produced (in other words where the disputed or contested Will is drawn up and executed by someone other than a Solicitor (“home-made” perhaps)) it is going to be much more difficult to persuade a court it is valid.
We discussed the significance of this in a previous blog (see https://www.willclaim.com/contesting-a-will-a-recent-case-study/). One way of looking at it is this. If someone asks you to prove a negative you will understand that that is by its nature rather difficult. Whilst here it would appear the court is asking someone to prove a positive, that is not in our view the reality of what is going on. Really the court is saying in the context of an allegation that the Will has been forged “prove that it hasn’t been”. It is then akin to proving a negative although on its face, it appears to be a requirement to prove a positive.
What is the burden of proof in Will dispute and Will contest claims?
It is rather complex, but was distilled very simply by Mr J Briggs in Key v Key 2010 EWHC 408 (Ch) (see https://www.bailii.org/ew/cases/EWHC/Ch/2010/408.html ), where he provided the following very succinct summary of the position at paragraph 97 of his Judgment:
The burden of proof in relation to testamentary capacity is subject to the following rules:
i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.
ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.
See Generally Ledger v. Wootton  EWHC 2599 (Ch) per HHJ Norris QC at paragraph 5.
So if the Will has been executed (signed by the testator in front of two witnesses) and seems to be rational, then unless a “real doubt” is raised by the person complaining about its legal validity, the burden shifts to that person to prove the Will isn’t valid – in other words to prove a negative. Again then this situation only appears to arise and is likely to create difficulty (for whoever is relying on the disputed or contested Will being a valid one) where it has been produced “unofficially”. This does not appear to be a coincidence then.
Who has the burden of proving a Will that is alleged to have been forged?
Whilst one would assume that in Will contest and Will dispute claims, the burden would fall on the person who makes the allegation, again, this is not the case. It falls on the person who says the Will is valid to prove it hasn’t been forged (to prove a negative!). Again, whilst this might not be an issue where the Will has been “officially” produced by a careful Solicitor (who can refer to his detailed file note in relation to the circumstances in which the Will was produced – which in most instances will be accepted by a Court), it is going to be much more difficult when the Will is produced unofficially and in somewhat suspicious circumstances. So said the Court in a very recent decision called Face v Cunningham and another (refer to the Law Society Gazette article – https://www.lawgazette.co.uk/news/warring-siblings-return-to-court-in-case-of-the-missing-original-will/5106608.article).
The case is properly report at https://www.bailii.org/ew/cases/EWHC/Ch/2020/3119.html.
At paragraph 46 Justice Hodge QC provides an analysis of the burden of proof in Will forgery cases as follows:
I have already recited the terms of this will. In his written skeleton argument Mr Lakin accepts that the burden is on the defendants to establish that the will is a forgery and that the standard of proof is the normal civil standard. For this, Mr Lakin relies upon the decision of Barling J in the case of Haider v Syed  EWHC 4079 (Ch), reported at  WTLR 387. The sole issue in that case was whether the signature of the testatrix on the will in question was a forgery. Barling J addressed the law at paragraphs 10-12.
“10. Mr Charles Machin of counsel, who appeared for the Defendant, accepted that given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant. He also accepted that cogent proof is required from the party making an allegation of forgery, albeit that the civil standard viz the balance of probabilities still applies …”
At paragraph 12 Barling J recorded that since there was “general agreement as to the principles” he should follow, he “need dwell no further on the law”. I note that Haider v Syed is cited, without adverse comment, at paragraph 9-76 of Williams, Mortimer and Sunnucks: “Executors, Administrators and Probate” (21st edn) at footnote 382. It is also cited, again without disapproval, at paragraph 3-034 of Theobald on Wills (18th edn) at footnote 145. In a section dealing with undue influence and fraud, it is said that the burden is on the person alleging forgery, and that cogent evidence is required, albeit to the civil standard of proof. I do not accept that the burden is on a person alleging forgery to establish that fact (albeit to the civil, rather than the criminal, standard of proof). It is a formal requirement of the validity of a will that (amongst other things) it is in writing, it is signed by the testator (or by some other person in his presence and by his direction) and it is duly witnessed. It therefore seems to me that the burden must rest on the party propounding a will to establish that it has been validly executed and witnessed. That is one of the formal requirements for proof of a will. I can well understand that where a will is challenged on the grounds of fraud or undue influence, the burden is on the party asserting that; but where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will, as part of the formal requirements of proving that the will was duly executed by the testator and was duly witnessed. It seems to me that Haider v Syed is no authority for the proposition that the burden of proof rests on a party alleging that a will is forged because the position was in no way challenged in argument in that case. A concession was made by Mr Machin (of counsel); and Mr Flavin (also of counsel) did not take any issue with it. (It was, of course, not in the interest of his client for him to do so.) However, in the present case it makes no difference to the ultimate outcome of this litigation because I am satisfied, so as to be sure, that the 2017 will is a forgery which has been concocted by Rebeca. I am led inexorably to that conclusion by the following four particular features of this case which, considered separately, are all highly suspicious, and which, when taken together, in my judgment clearly demonstrate that this will is a total fabrication.
So how does this affect the provision of our no win no fee legal services in will dispute and will contest claims?
We assess each case on its individual merits. However, it is more likely that we would offer our services to someone who is relying on a Will that has been “officially” prepared although we wouldn’t rule out offering to defend an “unofficial” Will provided we are satisfied our client or potential client was telling us the truth.
If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.