Forgery & The Perils Of DIY Testamentary Documents

From the following recent forgery cases, where the documents in question were not drafted by a solicitor, the validity of DIY testamentary documents have unravelled when the facts surrounding their making were examined.

Forgery and DIY testamentary documents – Case law

In the Scottish case of Niven v Hunter-Forbes Niven [2023} COSH 57 A71/22, it was found that the wife forged a codicil to her late husband’s Will, after his death. The codicil changed his Will so that she inherited his half-share of the matrimonial home for her to dispose of to her own children, rather than his children from a previous marriage. The codicil had not been drafted by a solicitor and contained grammatical and spelling errors which contributed to persuading the Judge that the document was a forgery.

In the case of Face v Cunningham [2020] EWHC 3119 (Ch), a daughter forged a photocopy of a Will purported to be her fathers, the original never being found. The daughter claimed she had found the “missing” Will under a bedspread in the spare room some 10 months later. The witnesses to the Will purported they met Mr Face by chance in a “Will” shop and he asked them to witness his Will. They claimed that Mr Face was a stranger, but it later transpired that they knew his daughter’s partner.

In Ball v Sisson [2020] 1 WLUK 544, the daughter forged her mother’s Will by producing a home-made document which left her a share of the residue when in her mother’s earlier Will she had been disinherited. She claimed that on the day the Will was signed, she had collected her mother and taken her to her house for the Will to be witnessed. CCTV footage showed that her mother had not left the property on that day, nor had she visited.

Genuine “DIY” testamentary documents are at risk of challenge!

In these cases, the high burden of proof required in bringing a claim in forgery is reiterated. Such claims can end in difficult, costly, and long-running court proceedings. They highlight the importance of credible and reliable witness evidence, which in all the above cases the defendants were not considered to be credible and/or reliable.

However, it also highlights that genuine “DIY” testamentary documents are at risk of challenge. In addition, they may not be correctly worded or validly executed which could result in the testator’s wishes not being carried out and that previous testamentary documents could still stand. This in turn can lead to unintended consequences and disputes.