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Forgery

Also known as: Forged Will, Fraudulent Will

Definition

Forgery is the criminal act of creating a fake will or altering an existing will without authority, with intent to deceive others into accepting it as genuine.

Understanding forgery is essential because it strikes at the heart of testamentary freedom—your fundamental right to decide what happens to your assets after death. When forgery occurs, rightful beneficiaries may be defrauded of their inheritance, and the deceased's true wishes are overridden.

What Does Forgery Mean?

Under the Forgery and Counterfeiting Act 1981, Section 1, forgery involves making a false instrument with the intention that someone will accept it as genuine, causing prejudice to another person's rights. In wills, this takes two forms: fabricating an entirely new will or altering an existing one. Common methods include faking the testator's signature, fabricating witness signatures, changing provisions after signing, or using pre-signed paper underneath a forged document to trace the signature.

Forgery is a serious criminal offence with penalties up to 10 years imprisonment. Section 3 also makes it an offence to use an instrument you know to be false with intent to deceive. Will forgery violates the Wills Act 1837, Section 9 requirements—valid wills must be in writing, signed by the testator, and witnessed by two people. When any element is fabricated without authority, the will becomes void.

The burden of proof shifted following Face v Cunningham [2020]. Now, the burden lies with the party seeking to propound the will—they must prove it was validly executed as required by the Wills Act 1837, making it easier to challenge suspected forgeries.

Common Questions

"What happens if a will is proven to be forged?" If a court finds a will has been forged, it will be declared invalid and the estate will be distributed according to intestacy rules (if no earlier valid will exists) or under a previous valid will. The person who forged the will may face criminal prosecution under the Forgery and Counterfeiting Act 1981, with penalties up to 10 years imprisonment.

"How do you prove a will has been forged?" Forgery is proven on the balance of probabilities (more than 50% likely), though courts require strong evidence for such serious allegations. Typical evidence includes forensic handwriting analysis comparing 10-20 known genuine signatures against the disputed signature, witness testimony about circumstances of signing, and sometimes ink-testing or document examination to detect tampering.

"Can someone be prosecuted for forging a will even if they're family?" Yes, will forgery is a serious criminal offence regardless of the forger's relationship to the deceased. Under the Forgery and Counterfeiting Act 1981, anyone who creates a false instrument with intent to deceive can be prosecuted, facing up to 10 years imprisonment. However, prosecutions may not proceed if the suspect is elderly or infirm.

Common Misconceptions

Myth: You need absolute proof beyond reasonable doubt to prove will forgery.

Reality: In civil probate proceedings, will forgery is proven on the "balance of probabilities" (more than 50% likely), not the criminal standard of "beyond reasonable doubt." While courts require strong evidence, compelling expert handwriting analysis, witness testimony, and circumstantial evidence can be sufficient. Only criminal prosecutions require proof beyond reasonable doubt.

Myth: If a will was witnessed properly, it can't be a forgery.

Reality: Witness signatures can also be forged, or witnesses can be complicit in the fraud. In some cases, witnesses genuinely signed but didn't actually see the testator sign, failing Wills Act 1837 requirements. Courts examine whether witnessing actually occurred as required by law, and forensic experts analyze all signatures including those of witnesses.

  • Fraud: Broader category of deceptive practices; forgery is a specific type of fraud involving the creation or alteration of false documents.
  • Invalid Will: If forgery is proven, the will is automatically declared invalid and the estate is distributed under intestacy rules or an earlier valid will.
  • Will Challenge: Forgery is one of the most serious grounds for contesting a will through contentious probate proceedings in court.
  • Signature: Valid wills require the testator's genuine signature; forging this signature is the most common form of will forgery under the Wills Act 1837.
  • Handwriting Expert: Forensic handwriting analysts provide crucial evidence comparing genuine and disputed signatures to prove or disprove forgery allegations.

Need Help with Your Will?

Understanding forgery highlights why creating a properly executed will with clear documentation is essential. A professionally drafted will with proper witnessing reduces the risk of future forgery allegations and protects your wishes.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.