August EWJ 24 - Flipbook - Page 69
The Crucial Role of Credible
and Reliable Witnesses in
Forged Will Claims
We examine the recent Court of Session judgment of Lord Woolman in Lee Donald Barclay v
Thorntons Trustees Limited and Others [2024] CSOH 18 and consider the evidential challenges
that commonly arise in cases where a will is alleged to have been forged.
According to the judgment, Lee had emigrated to
Australia in 2004 and had not seen his father for three
months prior to his death. He was not present when
the will was said to have been signed and could offer
no evidence from anyone to say that they witnessed it
being forged. That being so, he led expert evidence
from two forensic document examiners who considered that it was more likely than not that someone
else, rather than William, signed the will.
In this article we examine the recent Court of Session
judgment of Lord Woolman in Lee Donald Barclay v
Thorntons Trustees Limited and Others [2024] CSOH 18
and consider the evidential challenges that commonly
arise in cases where a will is alleged to have been
forged, including the importance of obtaining
credible and reliable witness evidence.
Background
William Barclay had been seriously unwell for some
time prior to his death on 3 June 2018. He had executed a will in 2015 which provided that the residue
of his estate be split equally between his long-term
partner, Mandy White, and his son, Lee Barclay.
Mandy however relied on eyewitness testimony from
herself and two others who said they saw William sign
the marriage schedule and the will. She also relied on
evidence from a forensic document examiner who,
unlike Lee’s experts, believed that there was insufficient evidence to reach a conclusion on authenticity of
the signatures on the will.
Two days before his death, he married Mandy and
twenty minutes later executed a new will which instead left three-quarters of the residue to Mandy and
one-quarter to Lee.
Against this background and at the very outset of his
judgment, Lord Woolman highlighted the key role of
witness credibility in this case.
This all happened in the bedroom of his Edinburgh
flat. However, it is notable that the will had been prepared in advance and on his instructions, by a firm of
solicitors.
Credibility and reliability of witnesses
When witness evidence is presented, there are two
distinct, but linked factors which are assessed by a
court in deciding how much weight, if any, to afford to
a person’s evidence – credibility and reliability.
Following William’s death, Lee disputed the validity
of the will, contending that his late father’s signature
had been forged.
Credibility has to do with a person’s veracity or
truthfulness, whereas reliability deals with accuracy of
a witness’s testimony.
When assessing credibility, the court will normally
consider:
l the way in which the witness answers questions and
their demeanour in court;
Lee sought to reduce the will on this basis and
therefore the burden was on him to prove “on the
balance of probabilities” that his father had not signed
the will unaided. In these types of cases, typically
evidence is led from witnesses to fact and expert
witnesses to show that the will has been forged.
EXPERT WITNESS JOURNAL
67
AUGUST 2024
