Is the Will A Forgery? Re Cassar

In contested estates matters, the issue of whether a will is a forgery must sometimes be considered. The Supreme Court of Victoria considered whether a will was a forgery and whether probate should be revoked in the 2022 decision of Re Cassar. This article outlines that decision and the legal principles involved.

Re Cassar [2022] VSC 126

The deceased, Frank, died on 14 October 2011 aged 60. Frank’s last will named his son Michael as his executor and sole beneficiary. Probate was granted to his son, Michael, on 3 February 2012. Administration of Frank’s estate had been completed.

Frank was survived by Sandra, his domestic partner of 30 years. Sandra was the mother of Michael and of his three siblings Paul, Francis and Teresa. The Inventory of Assets and Liabilities disclosed real estate in Victoria valued at $9,750,000, personal estate valued at $4,815,040 and total liabilities of $7,594,451.99

In July 2019, Sandra applied to the Supreme Court for an order that probate be revoked on the basis that the last will was a forgery. In addition, she also contended Michael could not establish that Frank knew and approved the contents of the will.

Sandra filed evidence to the effect that she, together with Michael, helped procure the creation of the forged will. Sandra had purchased the will kit from a newsagent. Sandra and Teresa filed evidence that Teresa had signed Frank’s name on his will ‘a few weeks’ after his death at the request of Sandra. The time when Teresa claimed to have signed it was inconsistent with what was stated in Sandra’s evidence.

One of the witnesses, Michael (brother of Frank) also filed evidence stating he signed the will as a witness after about a month after Frank’s death and only in Sandra’s presence.

Michael the beneficiary denied the will was a forgery. He claimed the other witness, Raymond (another brother of Frank) had witnessed Frank sign the will. Michael relied on expert handwriting evidence claiming the signature was Frank’s.

Sandra relied on expert handwriting evidence that said there was strong evidence the signature on the will was not genuine and was the result of a ‘simulation/forgery’.

The events of the alleged forgery had occurred in the months following Frank’s death.

Is the will a forgery: legal principles

The court considered the following legal principles. Firstly, the propounder of a will has the onus of establishing that the testator knew and approved their will. Secondly, the presumption of due execution of a will does not apply where there is an issue about whether the testator had or had not in fact signed the will. The most satisfactory evidence of this is the will being read over to the testator before it is executed, but this is not conclusive evidence and it is ultimately up to the court to be satisfied.

The court set out the following established principles:

(a) the onus of proof lies in every case upon the party propounding a will and that party must satisfy the conscience of the court that the instrument propounded is the last will of a free and capable testator;
(b) where circumstances excite the suspicion of the court it is for those who propound the will to remove the suspicion and to prove affirmatively that the deceased knew and approved the contents of the document; and
(c) it is only when any such suspicion is removed that the onus is thrown on a person resisting a grant to the propounder to prove facts relied on to displace the prima facie case in favour of the propounder.

Did Frank know and approve the contents of the will?

Sandra claimed the will was not consistent with Frank’s moral obligations based on the following four reasons:

1. No provision was made for Sandra, the deceased’s domestic partner of 30 years;
2. The will left Frank’s entire estate to one son, and nothing to his other children;
3. Michael had been estranged from Frank from 2005/2006 to 2011;
4. There was no evidence that Frank had instructed Michael as to why he was the sole executor and beneficiary of the will.

In addition, Sandra claimed the suspicion of the court was raised due to:

1. the terms of the will being simple, when Frank had a complex estate;
2. there being no involvement by a solicitor and the will not being left with a solicitor or bank for safe keeping, which made it possible it was prepared after Frank’s death;
3. Sandra having written out the will;
4. Michael’s evidence that he signed the will after Frank’s death;
5. evidence uncovered in the file of the lawyer who applied for probate;
6. the evidence of one of the handwriting experts that the signature was not genuine.

The court agreed that the suspicion of the court was raised because of the following factors.

1. There was no provision for Sandra or the children despite no evidence of estrangement.
2. Michael and Frank had been estranged for about three or four years.
3. There were features of Sandra and Michael’s dealings with the lawyer who applied for probate that increased the court’s suspicion.
4. The will had been made without the involvement of a solicitor and was made on a ‘will kit’ form. This factor, while not suspicious in isolation, adds to the suspicion when viewed in the context of the other circumstances.

Could the executor explain the suspicious circumstances?

Raymond was the only witness to give evidence that he witnessed Frank sign his will. His evidence was not reliable and was not accepted by the court. The court ultimately found that Michael (the executor) had not dispelled the suspicious circumstances.

Was the will a forgery?

The court preferred one handwriting expert’s evidence over that of the other expert and ultimately found the will was a forgery for the following reasons.

1. The conclusion that the will was produced in the manner referred to by Sandra in her evidence was consistent with the logic of events and the objective facts.
2. Sandra, Teresa and Michael were found to be witnesses of truth.
3. Michael (the executor) attempted to manipulate Michael (the witness) into making an affidavit confirming that the will was ‘alright’ by creating a false impression that Sandra would be placed in serious jeopardy if he did not do so.
4. The evidence of Sandra, Teresa and Michael (the witness) corroborated each other.

Ultimately the court found that Frank did not know or approve of the contents of the will and that the document was forged after his death. The Grant of Probate was revoked and Letters of Administration on intestacy was granted to Sandra.

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