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The Case of the Missing Will

Face v Cummingham & Anor [2020] EWHC 3119 (Ch):

If the late Sir Arthur Conan Doylewere to write up the events which have led to this present, unhappy litigation, [it] would no doubt have titled the resulting chronicle

“The Case of the Missing Original Will”.

So said His Honour Judge Hodge QCdismissing a contested probate claim between adult warringsiblings on the basis that it was ‘totally without merit’ and based on a ‘fabricated document’.

Background

The claim was brought by Miss Face against her sister, Mrs Cunningham, and brother, Mr Kaethner. It concerned the estate of their late father, Mr Donald Charles Face, who died on 2 October 2017.

Mrs Cunningham and Mr Kaethner believed that their father had died without making a will which meant that his estate would be divided between his children in equal shares.

Miss Face wanted her father’s estate to be administered in accordance with a copy of a document which she claimed was a will her late father had made. This document appointed her as the Executrix of the estate and gave her everything including her father’s house except gifts of £5,000 each to her siblings children subject to certain conditions. The will gave nothing at all to her brother and her sister.

Miss Face claimed to have found the photocopy of the alleged will whilst in the property that Mr Face occupied as his home until his death. The original document was never brought before the Court. 

Mrs Cunningham and her brother argued that the will wasa forgery concocted by Miss Face who had ‘conspired together with the two attesting witnesses, aided and abetted by her partner’. If their argument succeeded then their father would have died without a will and his three children would inherit in equal shares.

Judgment

The case raised an interesting issue of law on the burden of proof where an allegation is made that a will has been forged.

Having heard oral evidence from around 13 witnesses, totalling approximately 28 hours and 45 minutes, HHJ Hodge QC said that the case turned largely upon the reliability and creditability of the witnesses and dismissed the alleged will as a forgery, with costs in respect of Miss Face’s claim to be assessed on an indemnity basis, and directed a transcript of the judgment to be sent to the Crown Prosecution Service.

In other words, Miss Face did not only lose her case but the judge also invited the Crown Prosecution Service to consider whether a criminal case for fraud should now be brought against Miss Face and she was ordered to pay all of the legal costs incurred by her siblings in bringing their case against her. Miss Face had represented herself as had her brother but Mrs Cunningham had been advised by both her own solicitor and a barrister.

Conclusion

Apart from the obvious conclusion we can all draw from this case – don’t put forward photocopies of wills unless you are sure it can stand up to scrutiny – there are some other issues to consider as well.

Litigation is expensive, stressful and not always easy to predict. It seems difficult not to conclude that had Miss Face received some sensible legal advice regarding how likely it was that her photocopied document would stand up to scrutiny, she could have saved herself a lot of expense and a lot of time. It is very likely that the costs will form a significant proportion of the 1/3 of her father’s estate she will now inherit.

Mr Kaethner and Mrs Cunningham were also in a difficult position in that by asking the Court to declare that their father had died without a will, they were also arguing against their children having their gifts of £5,000 which were in the purported will. It may be that the children were all in complete agreement from the outset, but in contentious probate you need to weigh up all the pros and cons before issuing a claim.

Mr Face himself could also have saved everyone a lot of time, upset and money if he had put a will in place which recorded what he wanted to happen to his estate when he died. Putting a professional will in place does cost more money than writing your own but the advantage is that it also gives you a chance to record your wishes with someone objective who can give sensible advice about the different options available. It is also an awful lot cheaper in the long run if it avoids litigation later on. If you would like advice regarding contesting a will or defending a challenge to an estate please contact Tracey Leathley on 0113 368 7810 or email on [email protected]

Posted on Dec 7th, 2020 by Anthony Heywood

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