Forged Will case shifts burden of proof
In the recent forged will case of Face v Cunningham, the Judge challenged the conventional wisdom that the burden of proving that a Will is forged falls on the person alleging the fact (on the balance of probabilities) and that convincing evidence is required.
In Face v Cunningham, the Judge referred to the formal requirements for a valid Will set out in section 9 of the Wills Act 1837. This provides that a Will must be (1) in writing (2) signed by the testator (or by some other person in his presence and by his direction) and (3) duly witnessed.
It is accepted that the person propounding a Will (ie submitting it to the Probate Registry for Probate) must establish that it is validly executed and witnessed (albeit there is a presumption of due execution where this appears to be the case and there are no suspicious circumstances). Consequently, the Judge reasoned that the burden of proving that the Will is not forged must rest on the person propounding the Will, as part of this process.
This is contrary to the Court’s findings in the 2013 case of Haider v Syed, which the Judge noted was cited in leading textbooks, Williams, Mortimer and Sunnucks: Executors, Administrators and Probate and Theobald on Wills. However, the Judge found that Haider v Syed was no authority for the proposition that the burden of proof rests on the party alleging forgery because the position was not challenged in argument in that case.
It should be noted that the Judge himself concluded that the issue of who must prove that a Will is forged or not, was irrelevant to the ultimate outcome of this case, because the Will in question was so obviously a forgery.
Katie Emerson is a solicitor specialising in inheritance and trust disputes at Barker Gotelee, Ipswich solicitors.