Face v Cunningham: Forgery, the burden of proof and the importance of seeking professional advice

14th January 2021 Will Disputes

Background

The High Court has recently handed down its judgment in the case of Face v Cunningham and another. The matter concerned the estate of the late Donald Face who died in October 2017. The 3 parties in the case were his children: Rebeca, Rowena and Richard.

The Claimant, Rebeca, brought a claim to propound an alleged photocopy of a will of her late father dated the 7th September 2017 (“the 2017 Will”). Rebeca purported to have found the photocopy amongst Mr Face’s belongings, the original was never located. The 2017 Will made Rebeca the sole executrix and left the whole of the estate to her alone. 

Rowena and Richard as Defendants, both alleged that the Claimant had forged the 2017 Will with the help of her partner and 2 attesting witnesses. Consequently, the pair asserted that their father had died intestate and that the estate should therefore be distributed in accordance with the Intestacy Rules.

The case raised an important question of law: on whom does the burden of proof fall when alleging forgery. It was the Claimant’s position that it was for the Defendant’s to prove that the 2017 Will was forged and that the standard of proof was the normal civil standard of the balance of probabilities.

The Court’s decision

HHJ Hodge QC presiding, rejected the evidence of the Claimant and the 2 attesting witnesses. He stated that he found their evidence to be inherently incredible and was sure that it was pure fiction. Subsequently, he found that the 2017 Will was a forgery which had been fraudulently procured by the Claimant with the assistance of her partner and 2 attesting witnesses. HHJ Hodge QC ordered for a copy of his judgment to be sent to the Crown Prosecution Service (“the CPS”) so as to allow them to consider whether or not charges should be brought against the Claimant and perhaps also against those who aided and abetted her.

With regards to the burden of proof, many practitioners had placed reliance upon the decision of Mr Justice Barling in Haider v Syed which stated that it was for the Defendants to prove forgery. However, HHJ Hodge QC did not accept that the burden is on a person alleging forgery to establish that fact. At paragraph 46, HHJ Hodge QC stated: “It is a formal requirement of the validity of a will that (amongst other things) it is in writing, it is signed by the testator (or by some other person in his presence and by his direction) and it is duly witnessed. It therefore seems to me that the burden must rest on the party propounding a will to establish that it has been validly executed and witnessed. That is one of the formal requirements for proof of a will”.

The parties to the case did not instruct solicitors, and the judge was particularly critical of the preparation of the case, stating that navigating the trial bundles was “a complete nightmare”. There was not less than 6,100 pages of unorganised documents spanning across 19 lever arch files. Furthermore, the case had been subject to no less than 12 previous Court orders which is an extraordinary amount in this type of case.

Solicitors are well accustomed to preparing and managing complex and voluminous cases and this case highlights the importance of seeking legal help at the earliest opportunity.

Finally, it appears that the matter is not over for the Claimant just yet. What course of action the CPS will take is unknown, but had she sought legal advice early on, she would have been advised of the risk that pursuing litigation such as this may result in unforeseen consequences including the possibility of a prison sentence. 

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Ben Wilson is a Partner located in Manchester in our Will and Trust Disputes department

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