Proving fraud or counterfeiting: is there any evidence?

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When a family member or loved one dies, the terms of their will, if they made one during their lifetime, can sometimes come as a surprise to those who survive them. For example, the will may include unexpected beneficiaries, or some beneficiaries may receive a larger or smaller portion of the estate than others. Under the laws of England and Wales, a person is free to bequeath their estate to whomever they choose and there is no legal obligation to provide for a family member or other particular person. Therefore, while family members or individuals might view the terms of the will as unfair or unexpected, the law will generally uphold a testator’s wishes stated in their will, if it was validly made.

However, sometimes surprise about the contents of a person’s will goes hand in hand with fear that the will may not be valid due to fraud or forgery. If a will is found to have been tampered with or obtained by fraud, it will be declared invalid. Examples of this could include when the will has not been signed by the testator and someone else has forged their signature on the will (forgery), or when the testator has signed the document but does not know that it is a will and believes it something else (fraud).

Counterfeiting and fraud are criminal offences, as well as civil offences. In civil cases, the plaintiff must satisfy the court on a balance of probabilities that it is more likely than not that forgery or fraud has occurred (i.e. greater than 50% probability) . In criminal cases, the standard of proof is higher; the court must be convinced beyond a reasonable doubt that there has been falsification or fraud. This heavier charge reflects the more serious consequences of a criminal conviction against a defendant.

However, whether civil or criminal proceedings are being considered (or both), the evidence relied on by a plaintiff will often be the same and expert evidence will most likely be a central part of any case. Obtaining the opinion of an independent expert in forensic document review at the outset of a case is essential to determine whether or not there is evidence to support a claim that a will is invalid due to fraud or forgery.

There are a number of techniques available to forensic experts to seek evidence that a will has been tampered with or obtained by fraud:

SIGNATURE ANALYSIS

If there is concern that the signature on the will is not the authentic signature of the testator, experts will look for evidence of tracing, faking (copying) or transposition of the signature. They will need to examine as many examples of genuine signatures as possible, against the signature being queried, and account for the variation of the signature over time (no signature is exactly the same as the next) or due to poor health.

WRITING ANALYSIS

Experts can examine the handwriting to find out if the handwriting is genuine or if it was written in a way that disguises the writer’s usual writing style or simulates someone else’s handwriting. other.

PAPER EXAMINATION

This can be used to identify if multiple pages of a document were printed or written at different times, or on different printers, and if any document pages were overwritten or replaced.

FORENSIC INK ANALYSIS

Used to identify different inks on a document and which can show if a document has been changed or changed and can identify if text has been changed (e.g. when a change or addition has been made in the same color ink, which is invisible to the naked eye, but identifiable on forensic inspection as having been made with a different ink).

ESDA (AN ELECTROSTATIC DETECTION DEVICE)

Technique used to help identify indentations or indentations on a document, which may appear when the document has been laid over it, under another document. The writing on the upper document appears as an impression on the document below, which can give valuable information about the timing and creation of the underlying document.

In addition to expert evidence, evidence by witnesses on relevant issues will also be important. This will often include information about (i) the circumstances and time of the discovery of a will, (ii) what the testator might have told others about the making of his or her will, (iii) the history of the drafting of the will by the testator and (iv) the conduct of the alleged defendants. In cases involving allegations of fraud (for example, where the signature on a will is genuine but the person signing it did not know what they were signing), the evidence of those allegedly involved in the fraud will be particularly important.

While the key pieces of evidence will often be the same, the burden of proof will differ depending on whether it is an allegation of forgery or fraud. In Facing against Cunningham [2020], the court distinguished between the case where a will is challenged for fraud and the case where a will is challenged for forgery. The judge in Face v Cunningham held that the ultimate burden of proving that a will is not a forgery should be on the party seeking to propose and rely on the will. This is in direct contrast to an allegation of fraud (or undue influence); in these circumstances, the burden of proof is on the party making the allegation. In this case, having concluded that the testator’s will had been falsified, the judge ordered that the transcript of his judgment be sent to the public prosecutor to determine whether criminal proceedings should be brought. If criminal charges are pursued in cases such as these, the stakes are high, as a conviction can result in a custodial sentence.

Early collection and retention of documents is crucial in cases of fraud and falsification, especially documents with the handwriting and signature of the testator, as well as communications with professionals or persons suspected of having been involved in relevant cases. Contemporaneous evidence is extremely important, as the court will want to see it alongside expert and witness evidence. Allegations of fraud or counterfeiting are serious and therefore ensuring that you have identified and preserved the best evidence as soon as possible will have a direct impact on whether or not the claim can be proven.

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