When an allegation is made that a will has been forged, who does the burden of proof lie with? This was the issue that His Honour Judge Hodge QC sitting at the Chancery Division of Liverpool District Registry had to decide in the recent case of Face v Cunningham & Anor .
The facts of the case
The case concerned the estate of the late Donald Charles Face (“Donald”) who died at the beginning of October 2017, aged 73. He had originally occupied a property in London which he had inherited from his mother and where he lived with one of his three children, his son, Richard who was the second defendant in the proceedings and at the time of the trial aged 47.
Following a dispute with Richard over his occupation of this property which had led to separate litigation between them which was settled in February 2006, Donald sold the London property and with the sale proceeds purchased a flat in Wood Green as a home for Richard together with a separate property in Norfolk known as True Blue for himself and which he occupied as his home until his death.
Following his death, Rebeca, one of Donald’s two daughters, issued a claim form seeking to propound an alleged will of her late father dated 7 September 2017 (“the 2017 will”). The will was handmade and the original had never been located but Rebeca claimed she found a photocopy of the will printed on the front and reverse of a single page within a clear plastic wallet within a red plastic ring binder under a bedspread which was lying upon a bed in one of the bedrooms at True Blue on the night of 10 August 2018.
The first defendant in the proceedings was Donald’s other daughter, Rowena. She contended that the 2017 will was a forgery concocted by Rebeca who had conspired together with the two attesting witnesses, Mr Lee Humphrey (“Lee”) and his partner, Miss Sally McKenna (“Sally”) and aided and abetted by Rebeca’s partner, Stuart Neal (“Stuart”). Rowena contended that her father died intestate and that all three siblings were equally entitled to his estate on intestacy.
Initially Richard sought to contend that a previous will made in the second half of 2016 should be propounded but at an early stage of the trial he conceded that there was no evidence establishing either the fact or the contents of this earlier will and he withdrew his contentions in this regard. Thereafter, he likewise rejected the validity of the 2017 will and sought an intestacy of his late father’s estate. In addition, he also contended that he was entitled to a 48.03% interest in the property at Wood Green which had been his home since August 2016 by virtue of a handwritten contract with his father dated 15 February 2006 whereby he agreed to vacate the property in London in return for a gift from his father of £100,000 to be applied to the purchase of a home for him.
The 2017 will
The 2017 will was purported to have been witnessed by Lee and Sally. It confirmed it was the last will and testament of Donald and revoked all prior wills. It appointed Rebeca as executor. It continued as follows:
“I give and bequeath my whole Estate and my residence True Blue, to my Daughter Rebeca Olivia Lucille Face, less the gifts described below. Rebeca we do not always agree, quit [sic] often we disagree. Regardless of this, you are the only one of my children to communicate with me, you are the only one to call me Dad. I promised I would take care of you for the rest of your life, you have done more for me than I thought you would, I look forward to a few more years as friends.
I do not leave anything to my son Richard Edwin Launcelott Kaethner. Richard, you do not talk to me, you do not answer the door when I visit. You call me when you want help, you make me do things I do not want to do. I hope and Ruby in anyway I can. Despite this I am excluded from your lives, you did not tell me you were married, you did not tell me of your child, I do not know why. The way you are with me, I can not believe you are my son.
I give and bequeath free of all taxes leviable by reason of my death the sum of £5000 to each of my Grandchildren by my son Richard, alive at the time of my death, as shall reach the age of 18 years. To be retained by my daughter Rebeca, until they are over 18 years old, subject to them not living in their Fathers house, only for the purpose of acquiring a property, in their own name.
I do not leave anything to my Daughter Rowena Eleanor Liesa Cunningham. Rowena, you have talked to me of how your mother treated you, you told me she did not tell you the truth about me, yet you do the same to my Grand Children. You tell them their Grand Father is dead, you tell them not to talk to me, you tell them their Father has done bad things to them, you will not let their Father see them. You have accused me in court, you have called the police to my home. I have now seen the other side of you, your morals are not of a standard I can respect.
I give and bequeath free of all taxes leviable by reason of my death the sum of £5000 to each of the Grand Children by my Daughter Rowena, alive at the time of my death, as shall reach the age of 18 years. To be retained by my former Son-In-Law, Kristofer Pautsch, until they are over 18 years old, subject to them not living in their Mother’s house, only to be used for the purpose of acquiring a property, in their own name.”
The will was then dated and there was an attestation clause.
Burden of proof
Rowena’s counsel contended that the burden of proof lied with her and Richard to establish that the will was a forgery and that the standard of proof was the normal civil standard, i.e. balance of probabilities. However, the Judge did not accept this. He stated that in for a will to be valid it is a formal requirement that (amongst other things) it must be in writing, signed by the testator (or by some other person in his presence and by his direction) and duly witnessed. He therefore considered 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. Accordingly, he found that the burden of proof lay with Rebeca.
Although the parties had instructed a single joint forensic document examiner as regards the signature of the 2017 will, his expert opinion was inconclusive as to whether or not Donald had signed it. Accordingly, the case turned largely on the reliability and credibility of the witnesses which included, amongst others, the children and Lee and Sally.
The court was also assisted, in part, by detailed journal entries that Donald had kept himself over a period of years setting out details of all his activities. In this respect, whilst the journals provided evidence of discussions, communications and meetings with a solicitor, Mr David Pearl regarding instructions for the execution of a will, there was no written entry in the journals to confirm that Donald had ever actually made any will. This was supported by the evidence given by Mr Pearl himself at the trial which confirmed that although he had taken instructions from Donald in September 2016 and had prepared a draft will Donald had never executed the same as he could not decide what to do about the property in Wood Green which Richard occupied. The Judge considered it highly unlikely that Donald would have executed a will without using Mr Pearl’s services.
As to the evidence given by Lee and Sally, the Judge found this was inherently incredible and stated he was sure that it was “pure fiction”. Evidence from another witness, Mr Burns had revealed that it was likely Stuart and Lee had served together in the Royal Electrical and Mechanical Engineers (“REME”) (in which Rebeca was also later to serve) and that in July 2018 Stuart likely placed a social media post on a private REME Facebook site seeking to locate Lee. The judge indicated he was further satisfied that through Stuart, Lee and Sally were enlisted to assist Rebeca in witnessing the 2017 will. He went on to say that he was satisfied so as to be sure that between 23 July 2018 (the date of Stuart’s social media posting) and 10 August 2018 (the date Rebeca allegedly discovered the copy 2017 will at True Blue) Rebeca and Stuart conspired together with Lee and Sally to seek to pervert the course of justice by producing a forged will which they falsely and knowingly represented to be the last will of Donald.
The Judge’s findings in this respect were supported by the evidence of two other witnesses, Mr Paul Langley and his wife, Deborah. Mr and Mrs Langley were good friends and neighbours of Donald. Both of these witnesses gave evidence, which the Judge accepted, that Donald would never have travelled to Cambridge (which is where Lee and Sally lived and the 2017 will was alleged to have been signed and witnessed) without telling them that he was going or without telling him that he had been there upon his return.
Having heard the evidence, the Judge was in no doubt that Rebeca’s claim was totally without merit and based on a fabricated document. Accordingly, the Judge pronounced against the 2017 will and declared that Donald had died intestate. He did, however, also order that Richard was entitled to a 48.03% beneficial interest in the Wood Green property, albeit that as Richard had by this time been made bankrupt his interest vested in his trustee in bankruptcy.
The Judge also ordered that Rebeca should pay her siblings’ costs of the action and he further directed that a transcript of the judgment should be sent to the Crown Prosecution Service (as well as Richard’s trustee in bankruptcy).
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