We examine the recent Court of Session judgment of Lord Woolman in Lee Donald Barclay v Thorntons Trustees Limited and Others[2024] CSOH 18and consider the evidential challenges that commonly arise in cases where a will is alleged to have been forged.
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 18and 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.
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.
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.
Following William's death, Lee disputed the validity of the will, contending that his late father's signature had been forged.
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.
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.
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.
Against this background and at the very outset of his judgment, Lord Woolman highlighted the key role of witness credibility in this case.
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.
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:
- the way in which the witness answers questions and their demeanour in court;
- any evidence led about whether or not that person can be considered a truthful person; and
- 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.
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.
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.
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."
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 say William sign the will.
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.
Lord Woolman summarised that the three experts agreed on various important points, including:
- the accepted stages of handwriting over a lifetime;
- that no two signatures are the same;
- the accepted methodology of comparing disputed signatures against known signatures; and
- that evaluation is based on scientific principles such as shape, proportion, line length, thickness and degree of angle.
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.
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.
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.
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.
Comment
The judgment reiterates the high burden of proof in forged document cases, which can end in difficult, costly (both financially and emotionally), and long-running 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.
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.
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.