August EWJ 24 - Flipbook - Page 70
l any evidence led about whether or not that person
They also agreed that William’s signature was “W
Barclay” for 50 years, but he had nonetheless signed
the will with “W D Barclay”. However, the marriage
certificate (which six witnesses saw William sign) had
been signed with the same style of signature that the
will was signed with, including the middle initial D and
the marriage schedule was not challenged.
can be considered a truthful person; and
l whether they might they be a truthful person
generally who is potentially not telling the truth on
this topic for whatever reason.
In relation to the final point, whether or not the
witness has something to gain from being untruthful
will normally be an important consideration.
Lord Woolman pointed out that William may have
elected to sign like this because the signing instructions
accompanying the will from the solicitors contained
his middle initial.
When assessing whether or not a person’s recollection
of events can be considered reliable, the key consideration for the court is normally the length of time since the
event in question and whether or not that might have
had an impact on a witness’s claimed recollection.
Notwithstanding the fact that two of the forensic
document examiners considered that it was more
likely than not that someone else, rather than William,
signed the will; and one of them considered there was
insufficient evidence to say either way, Lord Woolman
ultimately concluded that even taking the expert
evidence from Lee’s two experts at its highest, it only
offered qualified support for his case.
In assessing both credibility and reliability, the court
will look at whether or not the witness evidence is
corroborated or contradicted by contemporaneous
evidence and/ or admitted or incontrovertible facts.
The witness evidence in this case
Although there were six people present in the
bedroom who witnessed William sign the marriage
schedule without assistance and all painted the same
picture in that regard, only three of them said that
they saw him sign the will – Mandy, along with
William’s close friends, Mr and Mrs Tempany.
As such and given the strength of the eyewitness
evidence which he accepted, Lord Woolman was not
persuaded that the signatures were not authentic. Lee
was therefore unsuccessful in having the will reduced
on the alleged basis that his father’s will had been
forged and was also ordered to pay Mandy’s legal
expenses in connection with the case.
At court, Lee sought to attack Mandy’s credibility and
reliability. However, Lord Woolman accepted the
evidence of the three eyewitnesses and said:
“In short, I accept the evidence of the three eyewitnesses. It is
always difficult to gauge credibility solely on the basis of demeanour. I saw nothing, however, in their appearance and
presentation in the witness box to indicate that they were dissembling or colluding. Rather, they each appeared to me to be
measured and truthful in their testimony. Each of them was
clear that the deceased had signed the will. Their accounts
chimed with each other. Mr and Mrs Tempany stood to gain
nothing by dishonesty.”
Comment
The judgment reiterates the high burden of proof in
forged document cases, which can end in difficult,
costly (both financially and emotionally), and longrunning court proceedings. In this case, William had
died in June 2018, with this judgment only being
handed down in February 2024.
It underlines the importance of credible and reliable
witness evidence in such cases and highlights the
weight that the courts will place on eyewitness testimony and contemporary documentary evidence in
cases like this, even where this is alleged to be disputed
by expert evidence.
Lord Woolman also noted that the fact that a further
three witnesses had earlier seen William sign the marriage certificate lent further persuasive support to the
evidence of the three who said that they saw William
sign the will.
Those seeking to challenge testamentary writings (or
other documents for that matter) should therefore act
quickly to instruct a solicitor to evaluate their potential
case and should only choose to proceed with a potential challenge to a will if they have a strong case and are
aware of the risk of adverse expenses should they fail.
Expert evidence from the forensic document
examiners
Lord Woolman thereafter went on to test the
eyewitness evidence against the strength of the expert
opinion evidence from the three forensic document
examiners.
This case also highlights the importance of putting in
place a will as soon as possible, with the assistance of a
solicitor, with a view to preventing insofar as possible,
any potential legal challenge to the same down the line.
Lord Woolman summarised that the three experts
agreed on various important points, including:
l the accepted stages of handwriting over a lifetime;
l that no two signatures are the same;
l the accepted methodology of comparing disputed
signatures against known signatures; and
l that evaluation is based on scientific principles such
as shape, proportion, line length, thickness and
degree of angle.
EXPERT WITNESS JOURNAL
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Our expert cross-departmental contentious executries, trusts and tax team draws on the expertise of
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