Wills fraud & validity – what to look out for

 In Comment

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Case Summary from LawSkills | Private Client specialist trainersFraud – Watts v Watts [2014] EWHC 668

This case revolves around the validity of a Will prepared by her sister for Valerie Watts who was in hospital dying of cancer.

The facts

Valerie Watts had two adopted children who were not themselves siblings: Christine and Gary. She made a Will in 1999 through Will Drafters Limited of Croydon leaving her whole estate between Christine and Gary equally. The Will the subject of these proceedings was handwritten by Valerie’s sister Yvonne on 12 January 2011 at Valerie’s bedside while she was in a hospice dying of cancer and in great pain (2011 Will). It gave her entire estate to her son Gary. An appointment to see Will Drafters Limited on 4th January had to be cancelled and a W H Smith Will kit used instead.

There is no suggestion that Valerie lacked capacity although she was receiving a significant amount of medication at the time the purported Will was supposedly signed. Pain management was one of the major problems for her. When she was admitted to St Thomas’s hospital on 3 January 2011 she was weak through lack of nutrition having eaten less than 500 calories a day for the previous month. Her medical notes described her as ‘rousable’ and when roused alert and able to communicate her own wishes for her treatment. The evening before the 2011 Will was signed she ate a sandwich but this caused pain, bloating and vomiting in the middle of the night.

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At 8.30am her notes showed that she wished to still stay alive and wanted to have a discussion with her son. By 13.45 she had decided that in the event of cardiac arrest she should not be resuscitated and had signed a ‘do not resuscitate’ form. This signature was the last admittedly authentic signature.

After Gary and Yvonne left her that day her medical notes indicated that she was in constant pain which was not being alleviated by the morphine. She was drowsy but was responsive and alert in conversation with the doctors and nurses.

Gary’s evidence demonstrated that he was diligently attentive to his mother during this last illness. He was asked to obtain the will-writing pack and said in evidence that it was opened after the signing of the ‘do not resuscitate’ form. He said he and Yvonne both read out the instructions and Valerie pointed out that Gary could not witness it as he was to be a beneficiary. Valerie suggested he ask a nurse to act as a witness along with Yvonne.

Gary’s evidence and the Nurse’s evidence as to what he said to her when asking her to sign the prepared document was inconsistent. Gary said he passed his mother a pen and she signed the Will; he claimed that Nurse Brown was in the room when Yvonne signed it and that it was he who asked her to insert her address but then accepted her refusal to do so. He said he did not sign it and did not ask his mother if it was ‘OK to sign for her’.

Yvonne said in her evidence that she was close to her sister and visited her daily at St. Thomas’. She bought the Will kit and she went through it with her sister who indicated that she did not want her daughter Christine to benefit from her estate in any way. Valerie dictated what she wanted and Yvonne wrote it down on the Will form and read it back to Valerie. She simply said that Nurse Brown was happy to act as a witness and that was what happened. She then signed the form. Both were in clear view of Valerie. After it was signed Yvonne handed it back to Valerie who placed it in the envelope supplied and thanked Nurse Brown.

Yvonne was critical of Christine in many ways and by the time the Will was prepared her views were entrenched claiming that Valerie died heartbroken at the repeated failure of her daughter to show any affection for her.

Yvonne was viewed by the Judge as a generally unsatisfactory witness because she repeatedly failed to distinguish between what she could remember and what she wanted to tell the court. At times she seemed to fail to understand what the role of a witness in a court of law was – she saw herself solely as there to help Gary. Secondly, her animosity to Christine was palpable and clouded her ability to be frank about what happened.

Nurse Brown said that Gary had not told her that she was needed to witness a Will, something she was not permitted to do by her employers. He said it was not an official document and she was not shown the full document. She also said that the only person she had seen sign the document was Gary himself and that Valerie had said nothing in her presence. She had never signed a Will before so declared she would not have known it was such a document. The Judge accepted her evidence.

Christine brought proceedings both under the Inheritance (Provision for Family & Dependents) Act 1975 (IPFD 1975) and on the basis of lack of validity of the Will.

Two handwriting experts gave evidence as to whether Valerie’s signature on the Will was genuine. Christine’s expert provided strong positive evidence that Valerie did not sign the 2011 Will. Gary’s expert had no scientific training. Although she agreed with Christine’s expert in part she concluded that there was strong evidence that the signature on the 2011 Will was that of Valerie.

The decision

The Judge preferred Nurse Brown’s evidence and therefore concluded that she did not see Valerie sign the paper nor attest her signature as required by s.9 Wills Act 1837. Also, she concluded that Yvonne signed the document after Nurse Brown left the room. She decided that Gary signed the Will by simulating his mother’s signature on it.

In case her decision on that lack of validity of the Will was appealed the judge turned to the claim under IPFD 1975 for a failure by Valerie to make reasonable financial provision for her adult daughter, Christine. The judge considered the checklist in s.3 of the Act and the balance of financial needs and resources between Gary and Christine, both of whom were in receipt of benefits.

Christine was not dependent on her mother for financial help during Valerie’s lifetime. Gary’s objection to her claim was based on his view that Christine neglected her mother in recent years. She did not visit her at all at St Thomas’ hospital due apparently to her own disabilities and the problems this caused her for travelling. She claimed she spoke to her mother daily and during these conversations her mother would ask her not to tell Gary or Yvonne. She also alleged that her mother told her on many occasions that her estate would be split equally between her two children.

The judge also accepted that in addition to her health and travel problems Christine could not cope with the fact that her mother was dying. Equally, Valerie at times broke off contact with Christine over her sexuality; her contact with her father following an acrimonious divorce from Valerie and her disappointment that her daughter had not given her grandchildren.

Gary’s relationship was much closer to his mother and he worked harder at it. The judge did not however form the view that Christine’s neglect was callous or that there was a complete estrangement. So viewing her conduct objectively concluded that Valerie’s 2011 Will, if valid, would have meant that her estate did not make reasonable provision for Christine.

As the judge decided that the 2011 Will was invalid and therefore the 1999 Will stands she concluded that the 1999 Will did make adequate provision for Christine so no order under the IPFD 1975 was required.

Practice points

  • In probate always double check the execution details on homemade Wills. In an ideal world the intending testatrix had the strength to hold the pen and make her own signature which was properly witnessed.
  • Was the signature of the deceased very different from any other examples of the testatrix’s handwriting? In which case this may indicate dementia or, as here, forgery.
  • If she was not able to sign herself but understood the document to be signed and gave her knowledge and approval to it she can direct someone else to sign it and that can be the Will draftsman who can even act as a witness surprisingly. However, ‘direction’ requires a positive act.
  • If the testatrix tried to muddle through with her signature but needed help in the holding of the pen there has to be evidence of involvement and not passive lack of resistance. This might be hard to prove later and it would be important to ask if a careful attendance note had been made.
  • It is possible for a beneficiary under the Will to sign at the direction of the testator as s.15 Wills Act 1837 does not apply to beneficiaries signing at the direction of the testator only to beneficiaries acting as witnesses to signatures. However, as here, lay people are not aware of this and so the temptation must be to try to forge the testatrix’s signature.

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