Face v Cunningham and Another: Which Party bears the Burden of Proving whether or not a Will is a Forgery?
Written by Holly Challenger.
The case of Face v Cunningham & Anor concerned a claim to propound an allegedly lost will. The Defendants challenged the validity of the alleged will, contending that the Claimant had forged the will. In delivering his judgment, HHJ Hodge QC considered inter alia the proposition that the burden of proof was on the Defendants, in alleging forgery, to establish that the will was in fact a forgery. It was argued by the Claimant that the burden of proof was on the Defendant, though it was accepted that the standard of proof was the normal civil standard; the balance of probabilities.
The case was heard over a nine-day trial in Liverpool between the 13th and 23rd October 2020 and concerned the estate of the late Mr Donald Face. The three parties were his children: Rebeca, Rowena and Richard. The Claimant, Rebeca, brought a claim propounding an alleged lost will (“the 2017 Will”). The original of the 2017 Will had been lost, but Rebeca claimed to have found a photocopy of it within her father’s papers.
Rowena, the First Defendant, alleged that the Will had been forged by Rebeca along with the two attesting witnesses. It was her contention that Mr Face died intestate and that under the intestacy rules, each of the three siblings were entitled to his estate in equal shares. Richard, the Second Defendant, also disputed the validity of the 2017 Will. He initially sought to propound a Will made in 2016 but accepted at an early stage of the proceedings that there was no reliable evidence in support of such contention and so also contended, along with Rowena, that Mr Face died intestate. There was also a further claim by Richard for an interest in the property in which he lived based on an agreement between himself and Mr. Face as to the beneficial interest in that property.
One of the key issues for practitioners that was considered in the judgment was that of which party bore the burden of proof in relation to the allegation of forgery. The Claimant accepted that the burden of proof was the normal civil standard of the balance of probabilities, but contended that the burden was on the Defendants, in alleging forgery, to prove it.
The Burden of Proof
The judge held that as it was a formal requirement (under section 9 of the Wills Act 1837) for the validity of the will that it was in writing, signed by the testator (or someone else in his presence and at his direction) and duly witnessed, the burden of proof must rest on the party seeking to propound the will to establish that it had been validly executed and witnessed. This meant that in this case, the burden of proof was not on the Defendant to prove that the 2017 Will was a forgery, but that the Claimant bore the burden of proving that the 2017 Will had in fact been validly executed and witnessed. At paragraph 46 of his judgment, the judge held that:
“In his written skeleton argument Mr Lakin accepts that the burden is on the defendants to establish that the will is a forgery and that the standard of proof is the normal civil standard. For this, Mr Lakin relies upon the decision of Barling J in the case of Haider v Syed  EWHC 4079 (Ch), reported at  WTLR 387. The sole issue in that case was whether the signature of the testatrix on the will in question was a forgery. Barling J addressed the law at paragraphs 10-12.
"10. Mr Charles Machin of counsel, who appeared for the Defendant, accepted that given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant. He also accepted that cogent proof is required from the party making an allegation of forgery, albeit that the civil standard viz the balance of probabilities still applies ..."
At paragraph 12 Barling J recorded that since there was "general agreement as to the principles" he should follow, he "need dwell no further on the law". I note that Haider v Syed is cited, without adverse comment, at paragraph 9-76 of Williams, Mortimer and Sunnucks: "Executors, Administrators and Probate" (21st edn) at footnote 382. It is also cited, again without disapproval, at paragraph 3-034 of Theobald on Wills (18th edn) at footnote 145. In a section dealing with undue influence and fraud, it is said that the burden is on the person alleging forgery, and that cogent evidence is required, albeit to the civil standard of proof. I do not accept that the burden is on a person alleging forgery to establish that fact (albeit to the civil, rather than the criminal, standard of proof). 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 judge went on to draw a distinction between a situation where a will is challenged on grounds of fraud or undue influence and a situation where a will is challenged on grounds of forgery. He held that the ultimate burden of proving that a will is not a forgery must lie with the party seeking to propound the will, as part of the formal requirements under the Wills Act 1837 of proving that the will was validly executed and witnessed. This is in contrast to an allegation of fraud or undue influence; in those circumstances it was clear that the burden lay with the party making the allegation.
HHJ Hodge QC continued at paragraph 46:
“I can well understand that where a will is challenged on the grounds of fraud or undue influence, the burden is on the party asserting that; but 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 that the will was duly executed by the testator and was duly witnessed. It seems to me that Haider v Syed is no authority for the proposition that the burden of proof rests on a party alleging that a will is forged because the position was in no way challenged in argument in that case. A concession was made by Mr Machin (of counsel); and Mr Flavin (also of counsel) did not take any issue with it. (It was, of course, not in the interest of his client for him to do so.) However, in the present case it makes no difference to the ultimate outcome of this litigation because I am satisfied, so as to be sure, that the 2017 will is a forgery which has been concocted by Rebeca…”
The claim to propound the 2017 Will failed; it was “based on a fabricated document”. At paragraphs 71 – 72 of the judgment, it was held that:
 “For the reasons I have given, I dismiss the claim by Rebeca as totally without merit. My order dismissing the claim should include my recording that the claim is totally without merit. It is based on a fabricated document.
 I will direct that a transcript of this judgment be obtained at public expense and that it should be sent to the Official Receiver in Croydon and to the Crown Prosecution Service. Having dismissed the claim, and said that it was totally without merit, the costs must fall to be paid by the claimant to the defendants. Having regard to the claimant's conduct, I am entirely satisfied that they should fall to be assessed on the indemnity, rather than the usual standard, basis. No doubt the costs can be retained out of Rebeca Face's one-third interest in the intestate estate of her late father.”
In delivering judgment in this case, HHJ Hodge QC questioned the commonly and widely held view that the burden of proving forgery is on the person alleging it.He noted thatthe case of “Haider v Syed is cited, without adverse comment, at paragraph 9-76 of Williams, Mortimer and Sunnucks… It is also cited, again without disapproval, at paragraph 3-034 of Theobald on Wills… In a section dealing with undue influence and fraud, it is said that the burden is on the person alleging forgery…”
He went on to say that he did not accept that the burden lies with the person alleging forgery to establish that fact, as distinct from the position in relation to undue influence or fraud where the burden does lie with the party making the allegation. Haider v Syed was no authority for the position that a person alleging forgery bears the burden of proof, as there had been no challenge to that proposition in argument during the case.
This seems a logical conclusion when one considers, as the judge did, the formal requirements of a valid will as set out in the Wills Act 1837 at section 9. It is right that the party seeking to propound the Will must prove that the requirements had been complied with in executing the Will. In this case, it meant that the Claimant must prove that the 2017 Will was duly executed and witnessed, rather than the Defendants having to prove that it was forged.
It is also of note that although the position adopted by the judge seems especially prudent in the case of a lost Will, it was not confined to such circumstances.
A copy of the judgment can be found here.
  EWHC 3119 (Ch)
  EWHC 4079 (Ch)