Contest a will for fraud or forgery
Written by John Lambe, Senior Partner at Forbes Solicitors.
There are a number of cases where the validity of the will is contested for fraud or forgery; however, relatively few are successful. This may be due to the fact that the allegation on other grounds such as lack of capacity, undue influence or lack of knowledge and approval, and where it arises, courts may draw their conclusions for grounds other than forgery.
A fraudulent will is an authentic document that does not truly reflect the wishes expressed by the testator.
Here are some examples of a fraudulent will:
- When the will has not been effectively signed in the presence of two or more witnesses;
- When the testator was led to sign a document without knowing that it was a will;
- When false statements are made to the testator to persuade the testator to make a will under certain conditions;
- Where the last will was deliberately destroyed.
A false will is a document that is not authentic.
Challenging a will based on fraud or forgery is usually made by those who claim to have been the victims of a conspiracy which has, therefore, deprived them of the inheritance they expected to receive. As noted above, such requests are often not presented in isolation by applicants and are often included alongside allegations of undue influence, lack of knowledge and approval, and lack of testamentary capacity.
Fraud and counterfeiting are also a criminal offense. A criminal prosecution must be processed before the probate action can be heard. When a homologation action has started, a request to stay that action until the end of the criminal trial can be made. If the charges result in a criminal conviction, this may be relied on as sufficient evidence for probate to be refused in respect of a will obtained by fraud or forgery.
Notwithstanding the requirements of section 9 of section 9 of the Wills Act, 1837, professional advisers responsible for preparing and drawing up a will should first and foremost ensure that the testator is aware of the entire contents of the will. , that is, the provisions of the aura have been explained to the testator and the professional adviser is reasonably convinced that the testator understands this, as it is an aspect often overlooked.
A Larke v Nugus claim for the future should also be kept in mind when educated. Therefore, attendance notes and detailed memos surrounding and after receiving instructions will help resolve any validity issues.
Some warning signs to consider when receiving instructions are:
- Did the testator leave out a beneficiary that should normally be included?
- What are the circumstances which led the testator to give the instructions?
- Does the will benefit one person to the detriment and exclusion of others?
- Does the will primarily benefit non-family members?
If any doubts or suspicions are raised about the circumstances surrounding the preparation of a will, these should be followed up and reasonably investigated before the will is duly executed.
If you have any doubts about the points raised in this article, please contact our Contentious Trusts and Probate team on 0333 207 1130 who will be happy to assist you.