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A will can be challenged on the ground that it is forged, or that it was obtained by fraud — including "fraudulent calumny", where someone deliberately poisoned the will-maker against a relative with lies. These are among the most serious allegations in a will dispute. They must be pleaded specifically, and although the civil standard of proof applies, the courts look for cogent evidence before finding them proved, particularly where the will appears to have been properly signed and witnessed. Forgery can also be a criminal offence, but the civil court decides the will's validity for itself.
A suspicion that a will is not genuine, or that someone lied to the person who made it, is one of the most distressing things to face after a death. This guide sets out how the law treats forgery and fraud in wills, what has to be proved and by whom, the role of handwriting evidence, time limits, and where the criminal law fits in. It covers England and Wales.
For the other grounds on which a will can be challenged — such as lack of capacity or undue influence — see our guide to contesting a will.
A will is only valid if it meets the formal requirements in section 9 of the Wills Act 1837. In short, it must be in writing and signed by the person making it (the testator), or "by some other person in his presence and by his direction", and the signature must be made or acknowledged in the presence of two witnesses present at the same time, each of whom then signs or acknowledges their signature in the testator's presence.
A forged will is one that the testator did not make at all, or that carries a signature they did not make or authorise. Two points follow from section 9:
Fraud in the making of a will means the testator was deceived into making it, or into making it in the terms it contains. The courts recognise a particular form, called fraudulent calumny. The principles, set out by Lewison J in Re Edwards [2007] EWHC 1119 (Ch) and applied in Rea v Rea [2023] EWHC 1901 (Ch), are:
"The basic idea is that if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside."
"The essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone."
So what someone said to the testator being untrue is not enough. What matters is the state of mind of the person who said it. In Rea v Rea the judge found that a daughter genuinely believed what she told her mother about her brothers, so it was "not … a case of fraudulent calumny". The judge nonetheless set the will aside for undue influence; the Court of Appeal allowed an appeal against that finding and admitted the will to probate ([2024] EWCA Civ 169). The appeal concerned the undue influence finding.
The same line of cases describes undue influence as influence "exercised either by coercion ... or by fraud", so the two grounds are closely related. Our guide to undue influence covers coercion. Where a testator did not understand what they were signing, the separate ground of want of knowledge and approval may also be relevant; it is covered in our guide to contesting a will.
A challenge to a will is brought as a "probate claim" under Part 57 of the Civil Procedure Rules. Rule 57.7(4) requires any party who contends that "the execution of a will was obtained by undue influence or fraud", or that it "was not duly executed", to "set out the contention specifically and give particulars of the facts and matters relied on." A general suspicion is not enough; the facts behind it must be stated.
Two principles meet in a forgery case, and the courts have not treated them identically in every case.
The person relying on the will must prove it. In James v Scudamore [2023] EWHC 996 (Ch), the court said that "in a probate case the person propounding the will ... must prove that it is valid", assisted by certain presumptions.
A will that looks properly executed is presumed to be. Where a will appears on its face to have been signed and witnessed properly, the law presumes it was. The same judgment quotes the long-standing principle that "the Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed."
Where forgery is alleged, the burden has been placed on the person alleging it — though not in every case. In Wrangle v Brunt [2020] EWHC 1784 (Ch), the parties alleging forgery accepted that "the legal burden of proving that the will is a forgery rests on them", and the judgment notes that the question "was left open" in an earlier case. On the particular facts there — a will produced more than ten years after the death — the court held that "convincing evidence is needed to defeat the allegation that the will is a forgery" and that the evidential burden was on the person relying on the will.
The standard is the balance of probabilities. This is the civil standard: more likely than not. It is not the criminal standard. But, as the House of Lords explained in Re H [1996] AC 536 (quoted in Wrangle v Brunt), "the more serious the allegation the less likely that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established". Forgery and fraud are serious allegations, and in Gardiner v Tabet [2021] EWHC 563 (Ch) the judge said that, given what a finding of forgery would imply, "I should be satisfied that there is cogent evidence justifying such a conclusion before reaching it."
Forgery cases often turn on expert evidence about handwriting and signatures, compared against documents the testator is known to have signed. Two rules in Part 35 of the Civil Procedure Rules govern it:
No official source publishes what handwriting or document experts charge. Evidence of what happened when the will was signed — from the witnesses, the person who drafted it, and any records — can matter as much as the expert evidence.
A challenge to the validity of a will is a probate claim, and the Limitation Act 1980 does not set a fixed period for it; delay is controlled by the court's discretion and the doctrine of laches. Separately, section 21(1)(a) of that Act disapplies the limitation periods for an action by a beneficiary "in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy", which includes fraud by an executor or administrator. The absence of a fixed period does not make delay harmless: evidence becomes harder to obtain with time. Our guide to time limits for contesting a will covers this in detail.
If a grant has not yet been issued, a caveat stops one being issued while the question is looked into — see how to enter a caveat. If a grant has already been issued, a probate claim can ask for it to be revoked (CPR 57.1(2)).
Forging a will can be a criminal offence. Under section 1 of the Forgery and Counterfeiting Act 1981 a person is guilty of forgery "if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine" and so act, or not act, to someone's prejudice. "Instrument" includes "any document, whether of a formal or informal character" (section 8). Section 3 makes it an offence to use an instrument the person knows or believes to be false, with the same intention. Dishonestly making a false representation to make a gain or cause a loss can also be fraud under section 2 of the Fraud Act 2006.
Whether a crime has been committed, and whether anyone is prosecuted, is a matter for the police and prosecutors. The civil claim about the will does not depend on it: the civil court decides the will's validity for itself, on the balance of probabilities. If someone is convicted, section 11 of the Civil Evidence Act 1968 allows the conviction to be used as evidence in civil proceedings that they committed the offence.
A court can pronounce for or against the validity of an alleged will in a probate claim (CPR 57.1(2)). Where it pronounces against the will, it can pronounce in favour of an earlier one — as the trial judge in Rea v Rea did, pronouncing "against the 2015 Will and in favour of the 1986 Will" before that decision was reversed on appeal. If there is no valid will at all, the intestacy rules apply. What happens in practice, and to any grant already issued, is covered in our guide to what happens when a will challenge succeeds. Who pays the costs of the dispute is covered in costs in contentious probate.
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