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Dishonesty and disharmony – will forgery in Watts v Watts

Posted on 6 April 2023

The recently reported judgment in the case of Watts v Watts is an example of family disharmony in relation to inheritance where an allegation of fraud was being dealt with as a preliminary issue. One of the deceased's sons, Carlton, brought a claim against his mother (Jobyna) in relation to the estate of his late father (Eustace) alleging that his mother had forged his late father's will made in 2000 and that the will (the "Disputed Will") had not been validly executed. The Disputed Will left everything to Jobyna, whereas Eustace's previous will in 1994 had purportedly divided his estate between Carlton and his brother (Fraser) and Jobyna. Such was the animosity between mother and son, that at one point Carlton put a sign on his car which read "Jobyna Watts forged her husband's will and stole his money". Carlton's claim to set aside the will failed.

At the time of the proceedings, Jobyna was 92 years old. She had met Eustace in the 1950s when she was working as a dancer in the famous Windmill Theatre in London and had been married for 45 years by the time of the Disputed Will. Her memory was noted to be poor, and she had no direct knowledge of the Disputed Will, nor of the earlier wills.

A challenge to a will on the basis of forgery (a form of fraud) is one of the most challenging bases on which to seek to set aside a will. Such a claim is a serious allegation and therefore the standard of proof is higher than it would be in other will challenges, which would apply the test of the balance of probabilities. The burden, therefore, fell on Carlton to prove that the will was not validly executed. The requirements for execution of a will are set out in s9 of the Wills Act 1837.

As it stood in 2000, s9 stated that a will is not valid unless:

  • It is in writing and signed by the testator, or by some other person in their presence and by their direction;
  • It appears that the testator intended by their signature to give effect to the will;
  • The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
  • Each witness either (i) attests and signs the will; or (ii) acknowledges their signature in the presence of the testator (but not necessarily in the presence of other witnesses)

The 2000 will had been prepared by Eustace's long-standing solicitors and the partner who took instructions for the will gave evidence in relation to its execution. She was one of the two witnesses to the Disputed Will, the other witness having predeceased and her evidence was accepted. In view of this finding, it was unnecessary for Master Clark to then consider the expert evidence, but she did so in any event.

The majority of cases alleging forgery require evidence in support from a handwriting expert. Central to the evidence before the court were the expert reports of the two appointed forensic document examiners, experts instructed by the parties to consider the handwriting and authenticity of the Disputed Will.

The evidence of Carlton's expert was questioned in detail, not least as it was noted that, unlike Jobyna's instructed expert, he had no samples of the deceased's signature and handwriting, only one example of Jobyna's handwriting. Notwithstanding, he drew his conclusions in relation to the alignment of the text in the will, the formation of the letters, the pen pressure applied and similarities in relation to Jobyna's signature and that of the deceased on the will. His evidence was entirely rejected and Jobyna's expert's evidence (which included an analysis of multiple variations of the deceased's signature) was accepted. As such, Master Clark found that the will was not a forgery.

This case serves to demonstrate the importance of handwriting evidence where forgery is central to the claim - specifically, clear and detailed instructions and as many examples as possible of the deceased person's handwriting. However, whilst the evidence of a handwriting expert is important, it will rarely take precedence over that of the attesting witnesses. In this case, the defendant had the trump card of the evidence of the instructed solicitor who had both taken instructions for and witnessed the execution of the Disputed Will.

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