In this case the master in the High Court Chancery Division was satisfied a Will had not been forged, but interestingly, the Appeal Court deemed the Judge in the first instance to have erred in their approach when arriving at this conclusion. This is a controversial ruling that provides guidance on what will be taken into account when determining a forgery claim, and the significance of expert evidence.

Facts of the case

Mr Brunt passed away in 2007 and his mother believed he died intestate and so obtained letters of administration and administered the deceased’s estate under the rules of intestacy.

However, in 2017, ten years after the deceased passed away a Will purportedly belonging to the deceased was discovered in a consultant’s office. The Will was signed by the consultant purportedly at the direction of the Deceased. A named beneficiary in the Will then claimed the estate ought to be re-distributed in accordance with the Will, and not the rules of intestacy.

Mr Brunt’s mother and brother disagreed, believing the Will to be a forgery created after he died, and raised concern regarding the consultant’s previous conviction for fraud.

Days before the trial took place, an additional copy of the Will was discovered. Both signed by the same consultant, but both signatures appeared to look slightly different and so handwriting experts were requested to give evidence at trial.

The consultant’s evidence in defending the claim involved;

• two signed Wills;
• two attendance notes detailing his appointments with the deceased; and
• one diary entry indicating when the Wills had been signed

Unfortunately, the Consultant passed away prior to the trial taking place.

The High Court’s decision

This is a case that suffered directly as a result of the impact of the Covid-19 pandemic and the lockdown the UK faced back in March 2020. Therefore the length of the hearing was shortened from the recommended eight days to three days so only key witnesses were cross-examined and the handwriting expert testimony was thereafter withdrawn.

The task for the High Court was to establish whether or not the Wills were in fact signed in 1999 without the testimony of handwriting experts.

Master Teverson adopted Parsonage (Deceased), Re [2019] EWHC 2362 (Ch) in his approach to assessing the evidence and making of finding of fact. In Parsonage, reliable contemporaneous documentary evidence was taken as a platform for fact-finding, adding to that known, established or probable facts, and then building further with witness evidence which was consistent or compatible with that underlying body of reliable documentary evidence.

Master Teverson took the disputed evidence provided by the Consultant first and used this as a platform to find if witness evidence was consistent with his findings. In his reserved judgment, he stated the deceased’s sister and uncle were impressive witnesses, that the mother was unimpressive, and that he had taken into account the Consultant’s bad character.

By adopting the Parsonage approach, the master held the Will to be a valid legal document on the assessment of the evidence and facts. The significance of this decision suggested there ought to be a focus on contemporaneous evidence instead of a reliance on expert evidence.

The claimants in this case subsequently sought to appeal this decision and an appeal was allowed. 

Court of Appeal judgment

In an interesting Court of Appeal judgment, Michael Green J concluded Master Teverson had erred in his approach by applying Parsonage and using unreliable contemporaneous documents as the basis for his consideration. Going further, he added the master had failed to weigh the evidence against factors that indicated the Will was a forgery and had given insufficient weight to the expert handwriting evidence. As such, there should have been a balancing exercise considering the aforementioned.

It was wrong to use the disputed evidence as a starting point and then to use witness evidence to find out if this was consistent. The attendance notes and diary entry were considered to be reliable contemporaneous documents however since they were challenged to be forgeries they were thus unreliable and should not have been used as a starting point.

In reaching the decision, the High Court should have focused on the witnesses, their possible motives for lying (Armagas Ltd v Mundogas SA (The Ocean Frost) [1985]), and the extent to which the court had relied on their demeanour. The master was also unclear as to why he found the deceased’s sister and uncle impressive witnesses, yet not the mother. Additionally, he failed to clearly explain what he meant when he said he had taken the Consultant’s bad character into consideration.

A serious flaw in his judgment was not accepting the expert evidence in this case. He rejected the evidence on the grounds that it did not fit with his findings of fact, despite the evidence strongly indicating the Will had not been signed in 1999. The handwriting experts were both satisfied the Wills had not been signed when the Consultant suggested, that they had been drafted on separate occasions, and that the diary entry had also been added at a later date.

On the above grounds, the court had no option but to order a re-trial.

Conclusion

The Court of Appeal judgment helps to provide guidance on how a Judge should approach evidence in cases similar to this one in the future. The re-trial will take place before a High Court Judge on a date to be fixed by the court shortly and it is well-worth keeping a close eye on seeing how this one unfolds.​​​​​​