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The "fictitious" beneficiary: Fraser v Khawaja

Posted on 29 January 2024

In a 2023 judgment released last month, a case of a disputed and so-called fictitious "enigma" of a beneficiary involved such overwhelming evidence of fraudulent behaviour that it ultimately led the Court to make, not only a finding of forgery, but a referral to the police for criminal investigation.


By way of background, a challenge was brought by the claimant (Mr Andrew Fraser as attorney for a family member of the deceased) to the validity of the will of Gerald Thomas Reading (the deceased). The defendant in the case (Mr Abbey King) was the purported attorney of a "Mr Joseph". Significantly, "Mr Joseph" was the sole beneficiary of the deceased's estate but no trace of him could be found – the defendant therefore applied for and was granted probate for the estate. It was the claimant's case that the beneficiary did not exist and that the will was not an authentic document under s.9 of the Wills Act 1837.

The judgment includes some useful discussion on the standing of the defendant and the evidential burden in cases where a claimant alleges forgery. What is particularly interesting about this case is the evidence against the defendant, namely that almost all of it pointed to the will being a forgery.

Authenticity of the will – forgery and other factors

Most striking about the factual background to this case is the evidence surrounding the elusive beneficiary "Mr Joseph". Typically, where forgery is alleged in relation to a will, the focus of the evidence lies on the authenticity of the signature. In this case, the Court, although satisfied on the basis of expert evidence that the signature was not that of the deceased, went further, to explore the rest of the overwhelming evidence against the defendant.

The claimant had undertaken significant and "assiduous" investigations to uncover the truth behind the will of the deceased. One point that the Court highlighted as being "deeply" concerning related to the address given for "Mr Joseph". Despite the deceased having no links to the country, having lived only in Buckinghamshire and Ilford, the beneficiary purportedly resided in Pakistan. Specifically, the address "Mohalla FC, Kachi Adabi" when translated into English, does not even refer to a specific place and instead is a general term for an area of a town that is a slum. Further, the individual named as beneficiary appeared to have no link to the deceased - in the will he was described as a friend, however in correspondence, the defendant asserted he was in fact a cousin. The defendant however provided no evidence to support either assertion of these.

Turning to the will itself, both on its face and in its context, the will was littered with glaring problems. The Court noted grammatical and linguistic errors throughout, which in the context of the deceased's profession (a lifetime of working in education), would likely have been unacceptable to him. There was also a number of nonsensical and inconsistent clauses, for example the specific exclusion of foreign assets when the deceased did not own any and reference to a mortgage that did not exist. Further, the first clause stated that the will related only to his estate in England and Wales, and yet the following clause gave all of his estate "whatsoever and wheresoever". This all pointed to the fact that the will was not drafted by a solicitor. Even if the will had not been so badly drafted, the claimant provided evidence to the fact that the solicitors who had been retained by the deceased throughout his lifetime, and dealt with his parents' and sibling's estates, had no record of the will in question. 

The Court also considered the suspicious conduct of the defendant. It noted the irreconcilable fact that the deceased's property was listed, by the defendant, for sale at £600,000 despite the estate being valued at £305,000, and therefore not liable to inheritance tax, for the purposes of the probate application. Despite the defendant taking this clear and positive action to administer the estate, in the face of litigation he attempted to "withdraw" from the matter and merely informed the Court that he had "nothing whatsoever to do with the estate of the deceased".

Aside from these attestations, the defendant made no formal application to renounce his role as administrator. He ultimately attempted to wash his hands of his position and the claim against him, not even filing an acknowledgment of service of the claim with the court. Further concerning conduct included the defendant's references to the deceased as "Gerry" in phone calls with the claimant's firm, a name which evidence showed was not a name used by anyone else. Overall, the Court found that despite the defendant's claims to have been a "good friend" to the deceased, he showed no willingness to provide any information to assist the Court or evidence this fact, and it was therefore not truthful.

It is not surprising then that, the Court, on the basis of the above facts, was quite easily able to put together a "jigsaw" of an elaborate, but badly executed, forged will, and declare it to be invalid - ultimately passing the evidence on to police for further investigation.

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