Background

The case of Rainey v Weller and Ors concerned the Estate of Mrs Brenda Weller (“the Deceased”) and whether she had made 1 or 2 wills in her lifetime.

The Claimant was Ann Rainey (“Ann”), the Deceased’s niece. The Defendants were the Deceased’s 3 children, Paul, Stephen and Toni and her “three favourite grandchildren”, Francesca, James and Arry (“the Defendants”).

In February 2018, the Deceased instructed Austin Ryder to prepare a will and a Lasting Power of Attorney (LPA) in which Ann was appointed as Attorney. The Deceased attended upon Austin Ryder’s offices herself and met with 2 solicitors, Mr Crabb and Ms Thompson. Mr Crabb was instructed to prepare the Deceased’s will whilst Ms Thompson was instructed to prepare the LPA. Both prepared contemporaneous notes of their meeting with the Deceased and retained a file of papers as evidence of the Deceased’s dealings with the firm. The Deceased’s will was executed on 9 February 2018 (“the February Will”) at Austin Ryder’s offices and appointed Ann as the sole executor and beneficiary. The LPA was signed by the Deceased the same day. Mr Crabb and Ms Thompson later prepared witness statements dealing with the Deceased’s instructions and the execution of the February Will amongst other things.

Less than 4 weeks later, the Deceased’s son, Paul, alleged that the Deceased asked him to prepare a further will (“the March Will”). Paul did so and arranged for it to be executed on 5 March 2018 with him and Toni as attesting witnesses. Under the March will, the Deceased’s entire estate was left between Francesca, James and Arry and Paul was appointed the sole executor. During his evidence, Paul told the court that the Deceased had asked him to keep the original at his house, but to provide her with a copy which he did.

Prior to her death in late November 2018, the Deceased provided Ann and her sister with the keys to her home and asked them to collect a suitcase from under her bed which they did. Following the Deceased’s death, Ann opened the suitcase in the presence of various family members. She came across 5 sealed envelopes addressed to Toni, Francesca, James and Arry, and also to Olivia, Francesca’s daughter. The envelopes contained £1,000 in cash for each of them. There was also some jewellery left for Francesca and Olivia as well as a copy of the February Will which neither Ann nor any of her family members had seen previously.

On 9 January 2019 Paul obtained probate for the Deceased’s estate. Paul was initially unsure as to where he had put the March Will, but found it in his loft by around December 2018. He applied for probate without notifying Ann and put the Deceased’s house up for sale immediately. Ann subsequently instructed solicitors alleging that the March Will was a forgery and that the February Will was the only valid will executed by the Deceased. Proceedings were later issued in April 2019.

The issues

In short, the issues for the court to decide were simply:

1. Was the will made on 9 February 2018 genuine?
2. Was the will made on 5 March 2018 genuine?

In order to determine these issues, Deputy Master Linwood referred to the case of Face v Cunningham where HHJ Hodge QC said “…where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will, as part of the formal requirements of proving the will was duly executed by the testator and was duly witnessed.” 

It was therefore for the Defendants to establish, on the balance of probabilities, that the signature of the Deceased on the March Will was genuine.

The Court’s decision

Remarkably, Deputy Master Linwood heard evidence from 13 witnesses of fact. There was a significant divide between those on Ann’s side of the family and those who were part of Paul and Toni’s side of the family. There were strongly opposing views on the contact between each side and the Deceased and the quality of the relationship between the Deceased and Ann and the Deceased and the Defendants, particularly her children. The judge also had evidence before him from witnesses wholly independent of the parties which he placed great reliance upon. He found both these witnesses and the Claimant’s witnesses to be reliable and preferred their evidence in its entirety.

The court also heard from 4 experts. One such expert, Dr Chatfield, gave evidence as to the examination of weights of the contents of a “signed for” recorded delivery that Ann’s solicitors received from Paul purportedly enclosing 4 original bank cards belonging to the Deceased. These 4 cards were due to be disclosed to Ann’s handwriting expert for examination. Dr Chatfield’s evidence was that the weight of either an A4 brown or white envelope filled with 4 bank cards would weigh more than figure on the Certificate of Posting produced by Paul of 20 grams. Such a finding led the court to conclude that Paul had misled his own expert and the Court by sending a blank envelope.

There were also 2 handwriting experts involved. Both experts were in agreement that the signature on the February Will was likely to be genuine, whereas they differed in opinion as regards the March Will. In any event, the court preferred the evidence of Ann’s expert, namely that there was “moderate to strong evidence” that the signature on the March Will was not genuine.

The final expert was asked by Paul to examine a digital photograph of, and to extract the metadata from it, the picture being one Paul had taken of the original March Will. The expert stated that both the metadata and GPS time stamp could be manipulated. As a result, the judge found this report not to be determinate of the point Paul was trying to seek i.e., that he took the photograph of the March Will on 7 March 2018.

Conclusion

It follows that the Judge found the February Will to be genuine relying heavily on the evidence of Mr Crabb and Ms Thompson and the supporting will file. The Deceased had instructed Austin Ryder of her own free will and the evidence before him pointed towards a lack of trust towards her children and an estrangement. As to the March Will, the Judge held this to be a forgery. He found that it was improbable that the Deceased would have changed her mind as to the contents of her will in such a short period and there was no intervening event which would have justified her doing so.

The evidence obtained in relation to metadata was an interesting aspect of this case as it is not often sought. The Judge also passed comment on the absence of any metadata from Paul’s laptop. He was surprised not to have evidence to show exactly when the March Will was prepared and how or from what and it appears that Ann’s solicitors had not appreciated the possibility of obtaining such evidence. Consequently, practitioners may have to develop a more open mind to the sources from which evidence can be obtained.

This blog was co-authored by Alison Parry and Max Murphy.