Forgery
| Author | Nasreen Pearce |
| Pages | 89-98 |
Chapter 7 Forgery
7.1 INTRODUCTION
Forgery of a will is assumed to be rare because there are few reported cases. However, this may be due to the fact that the allegation is included within the grounds of lack of testamentary capacity, lack of knowledge and approval and undue influence, and where it is raised courts may reach their conclusions on grounds other than forgery. Michael Tringham, writing in the New Law Journal on 11 December 2009, gave three examples of cases in which police investigations resulted in criminal convictions, and recent prosecutions which have received some publicity are an indication that forgery of wills is not a rare incident.
The Scottish Law Reporter website (www.scottishlawreports.org.uk) has referred to the increase of incidents of forgeries in probate disputes in Scotland involving large to small estates, where wills have been altered or forged by the survivor of spouses or partners and other relatives of the deceased or others. One such reported recent case is Sharon McGeever (AP) as Legal Representative of her daughter Sophie v Maureen Nicol [2012] CSOH 115, where a mother faked the will of her dead son in order to get possession of her son’s house so that it would not pass to his child and his former partner.
Cases where wills are produced as a consequence of fraudulent false or malicious statements made to the testator/testatrix by a person who has a close relationship with the testator/testatrix, often referred to as ‘fraudulent calumny’, or making false statements to obtain probate or seeking to prove a will that has been forged are also not unusual.
7.2 EVIDENCE
Many cases involve people going through convoluted and sometimes complex procedures and actions to weave a web of deceit in order to create a legitimate front and to conceal their tracks. These may involve falsifying documents,
90 A Practitioner’s Guide to Probate Disputes
producing multiple wills or codicils, misappropriation of assets before and after the death of the testator/testatrix, providing false information to banks and other financial institutions and forming corporate bodies. The case of The Solicitor for the Affairs of Her Majesty’s Treasury v Doveton and Another [2008] EWHC 2812 (Ch) best illustrates the lengths to which a fraudster will go to legitimise his/her case and the detailed scrutiny of the facts which the court will undertake to make its determination. In that case, the Treasury Solicitor brought an action for the revocation of a grant of probate to and several dispositions made by Mr Doveton, who obtained a grant of probate of an alleged will dated 19 May 1977 claiming that he was a distant cousin of the deceased, Mrs Janovtchik. The ground of the claim was that the will was a forgery.
The deceased died on 8 November 2005. The Treasury Solicitor established that the estate was bona vacantia in about January 2006 and lodged a caveat (objection). Mr Doveton applied for probate in May 2006 and discovered the caveat (objection), whereupon he approached the Treasury Solicitor to remove the caveat (objection). In support of his account, he sent a copy of the will and an account of his connection with the deceased and the circumstance in which he came to be in possession of the will. Despite the caveat (objection) being in place, Mr Doveton managed to obtain probate by manipulating the procedural process. He immediately set about taking possession of the deceased’s property and transfering funds into his accounts, and he then took steps to enter into a number of transactions in relation to his own assets and those of the deceased’s estate transferring them to a company which he formed and which was incorporated in the British Virgin Islands. The Treasury Solicitor remained suspicious and commenced proceedings. The evidence adduced was contained in 10 files and took 6.5 court days.
The disputed will was a one-page A4 typed document. It contained a number of typographical discrepancies and spaces between letters, and the deceased’s name was spelt as Janovtechnik. It made Mr Doveton, who would then have been 14 months old, one of the executors and the beneficiary under the will. Mr Doveton gave a convoluted account of how he came to be in possession of not only the deceased’s will but also her husband’s wills. The court found that Mr Doveton had a staggering disregard for the authority of the court, a propensity to lie or tell half-truths and persistence in giving an untrue account of events. In relation to the credibility of Mr Doveton in finding that the disputed will was a forgery, the judge said (at [129]–[131]):
129. In the end I go further, because in considering the totality of the evidence before the court in this action, there are several factors which I cannot avoid taking into account, and I list them here in brief, in no particular order of significance: —
(a) The obvious falseness of the witnesses’ signatures, coupled with Mr Doveton’s access to those signatures.
(b) The use of the surname Janovtechnik in the disputed will and the non-use of it in Mr Janovtchik’s 1977 will.
(c) The appointment of Mr Doveton as a 14-month-old child as an executor.
(d) The omission of Mr Janovtchik as a beneficiary of the disputed will.
(e) Mrs Jones’s evidence that the name Janovtechnik on the death certificate, and therefore the bona vacantia website, was a mistake.
(f) Her evidence that Mr Doveton had told her that he found the death on that website.
(g) The lack of any independent evidence of any relationship at all between the Futchers or Dovetons and the Janovtchiks.
(h) The disputed will being apparently typed by a person unfamiliar with old-style typewriters.
(i) The pictorial signature on the disputed will...
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