There are five grounds on which the validity of a Will can be challenged. This article looks at the final ground, fraud.
There are two forms of fraud. The first is the forgery of a Will or Codicil itself. The second is known as ‘fraudulent calumny’. They are very different in nature and unlikely to feature in the same set of proceedings.
Fraud #1 – Forgery
A Will which is found to be a forgery will not be valid and so the Estate will not be distributed in accordance with its contents. A fake Will obviously will not comply with the formalities required by section 9 of the Wills Act 1837.
Forging a Will is also a crime. If a Will or Codicil is found to be a forgery, not only will it be invalid, but the forger may be prosecuted. Even if not prosecuted, he or she could find themselves the subject of contempt of court proceedings brought by the other party to the Will dispute. This was the fate of Girish Patel, who was given a 12 month custodial sentence in 2017 after pursuing a fraudulent claim based on a Will he had forged.
Reported cases successfully brought on this basis are rare, probably because if the evidence is clear enough then the police will investigate and pursue the matter. Even if the police do not investigate and allegations of forgery are raised in a Will dispute, the Court may well be more inclined to find a Will invalid on other grounds, such as want of knowledge and approval.
Fraud #2 – Fraudulent Calumny
Unlike forgery, fraudulent calumny is not criminal in nature if it is found to have occurred. It is also alleged more frequently than forgery, usually along side some of the other grounds for challenging a Will. Nevertheless, cases where it has succeeded are still relatively rare.
Fraudulent calumny is a type of fraud where a person seeks to poison the mind of the Will writer (the ‘testator’) against another potential beneficiary so that the latter is written out of the Will. It is just as easy to categorise it as a form of undue influence.
The person making the statements must believe they are false, or not care whether they are true or false. If he or she honestly believes the aspersions, then fraudulent calumny will not be found. That will be little solace though for the beneficiary written out of the Will because of factually incorrect, albeit honestly held, views of the statement-maker.
Who has to prove what?
The onus of proving fraud, either forgery or fraudulent calumny, is on the person asserting it. Whichever is alleged, they must prove it on the balance of probability. That is lower than the criminal standard (of beyond reasonable doubt) but because of the grave nature of the allegations, compelling evidence must be available before a judge is willing to find either allegation is proved. That is particularly in the case of a finding of forgery where criminal or contempt proceedings could follow.
As with undue influence, these sorts of cases will succeed or fail on the strength of the evidence and whether the circumstances allow for no other conclusion. It is vitally important to identify at an early stage a specialist legal adviser who is able to assess the evidence, discuss the merits of your case as well as the cost effectiveness of pursuing or defending a Will validity challenge.
We offer claim review meetings whereby we will take you through each of the above grounds and consider whether or not it is cost effective for you to launch a claim against the estate or to defend a claim brought by another.