In order to be valid, a Will must be signed by the testator (the person making the Will) in the presence of two witnesses. But what happens when there are suspicions that the testator’s signature is not genuine? The recent case of Khatun v Hasan & Anor illustrates how a court will approach a suspected forgery.
In this case Mr Shaikh had apparently made a Will which disinherited his only daughter, leaving his entire estate to a gentleman called Mr Hasan, an acquaintance who lived in one of Mr Shaikh’s properties.
Mr Shaikh owned his own solicitors’ firm and generally entrusted all of his legal work to a different firm of solicitors. However, the Will was allegedly prepared by Mr Shaikh himself. The will was oddly drafted and riddled with errors (including misspelling his daughter’s name). The will appointed Mr Pathania, a struck-off solicitor, as the sole executor (i.e. the person responsible for administering the estate). Mr Pathania was also one of the witnesses, and had apparently been responsible for storing the original will.
There was a delay in Mr Hasan sharing a copy of the Will after Mr Shaikh’s death. The explanation given was that the will had been stored in a shoebox on top of a wardrobe, and Mr Pathania had forgotten where it was.
Mr Shaikh’s daughter, Ms Khatun, was understandably surprised by the emergence of the Will. She instructed a handwriting expert to examine her father’s supposed signature and brought a claim alleging that the Will was fraudulent.
The handwriting expert concluded that there was strong evidence to suggest that the signature on the Will had been written by someone other than Mr Shaikh, who was familiar with Mr Shaikh’s signature.
However, the Court placed greater weight on other suspicious circumstances. In particular, the Court pointed out that:
- There were no documentary records relating to the execution (i.e. the signing and witnessing) of the Will;
- Mr Hasan said that he had a close relationship with Mr Shaikh, which explained the terms of the Will, but the evidence did not establish this close relationship;
- It was odd that Mr Shaikh would draft a Will himself and ask Mr Pathania to store it, when he entrusted all of his other legal work to another firm of solicitors;
- There were inconsistencies in Mr Hasan’s explanation for the delay in producing the Will; and
- The Will referred to assets in Pakistan, when Mr Shaikh did not actually own any assets in Pakistan.
The Court found that, because of the suspicious circumstances, the onus was on Mr Hasan and Mr Pathania to prove (on the balance of probabilities) that the Will was genuine. The suspicious circumstances made it difficult for Mr Hasan and Mr Pathania to discharge the burden of proof, and they failed to do so. It was decided that the Will was not genuine and would not stand.
If you have concerns that a Will may have been forged then please contact us, and a member of our specialist private wealth disputes team will be happy to discuss matters with you.