Claims Of Will Forgery Reversing The Burden Of Proof

Generally, the burden of proof when challenging the validity of a Will rests with the person challenging the Will. This means any person challenging a Will must prove on the balance of probabilities why the Will is invalid. The challenger is most likely to rely on Section 9 of the Wills Act 1837 and will seek to argue that the Will does not meet the criteria as required under that section.

Face v Cunningham and another

Contrary to the general position, the recent case of Face v Cunningham and another held that when alleging forgery of a Will, the burden of proof is to be reversed and the onus of proving the Will’s validity lies with the applicant whom is seeking to confirm (or as referred to in the legal world ‘propound’) the Will. Therefore, the person seeking to propound a Will if challenged on the grounds of forgery, must prove to the Court on the balance of probabilities that the Will was duly executed in accordance with Section 9 of the Wills Act 1837.

The case of Face v Cunningham and another involved a photocopy of the Deceased’s Will, as allegedly found by the Claimant, leaving the Deceased’s entire estate to the Claimant. The Defendant’s challenged the Will and claimed the Will was the Claimant’s forgery, on the basis that no Will was immediately located after the Deceased’s death and there was no reason why the Deceased would have disinherited his two other children. The Claimant alleged to have found the copy of the Will 10 months after the Deceased’s death in the Deceased’s house.

The Claimant’s application to the Court to have the Will propounded was therefore met with a challenge that the Will was a forgery of the Claimant in an attempt to secure the Deceased’s estate. Whilst the Claimant was able to produce the attesting witnesses in support of the alleged Will, the Defendants were able to successfully challenge their evidence and the Judge did not accept their evidence.

The way in which the case was dealt with was in fact more notable, as moving forward it is expected when alleging forgery of a Will, the onus on proving the Will lies with the person against whom the forgery is alleged. This does not entirely remove the challenger’s need for action as it is expected they may also seek to disprove any evidence provided in support of the Will.