This might be something quite obvious – the forging of a signature, for example – or something less obvious, such as someone telling the Testator a lie so that the Testator treats one beneficiary more favourably in his Will than another. If someone led the testator to believe that certain facts were true and this influenced the contents of their Will, this could be fraud.
An example of such a case is Allen v M’Pherson (1847) – a claim of fraud was established when a person made false representations to a Testator about the character of another person, for the purpose of inducing him to revoke, by codicil, a gift made to the other person in his Will.
There are no time limits for contesting fraudulent Wills – however, you should not delay bringing a claim (see ‘What are the time limits for contesting a Will?‘ for more details).
Fraudulent Wills : the challenges
Few Wills are challenged on the basis of fraud. Firstly, it can be quite difficult to prove – particularly as the main witness (the Testator) has passed away. Secondly, whilst most challenges to a Will must meet the civil standard of proof (i.e. the judge will assess which party’s version of the facts is likely to be true, on the balance of probabilities), the standard is higher for fraud cases.
For this reason, it may be better to use a different ground on which to challenge the Will, where the case will be decided on the normal civil standard of proof.
For example, suspicious circumstances may also give rise to a claim that the Testator did not have knowledge and approval of the contents of the Will. The person that alleges the Will is valid will then have the burden of allaying the Court’s suspicions. If they are unable to do this, the Will would be held to be invalid.
Contesting a Will : forgery
If the Testator’s signature or the entire Will has been forged, it will of course be invalid. As forgery is a form of fraud, the same issue arises as to the standard of proof which would be higher than the usual civil standard.
With forgery cases, it is usually necessary to get a handwriting expert on board who will analyse if the Testator’s signature is his own. The expert would need a good number of signatures to compare the Will to. If the report of the expert is not conclusive, the claim will not succeed. If the report does confirm that the Testator’s signature could have been forged, the Court will look at all the evidence including any evidence which supports the authenticity of the Will. For this reason, before the Will is examined by the expert, it is necessary to collect statements from witnesses in relation to the circumstances surrounding the Will.
If the Will is held to be invalid, any earlier Will made will apply. If there is no earlier Will, the rules of intestacy will apply.