A recent claim of forgery issued in the High Court has highlighted the importance of careful succession planning and how this can mitigate the risk of falling victim to forged wills.
Maureen Renny was the former headmistress of The Barn School in Hertfordshire. Her Grade II listed home, valued at approximately £1.65 million, was the site of The Barn School until its closure in 1998. However, four months prior to her death, Ms Renny allegedly executed a new will leaving her entire £4.2 million estate (including her beloved property) to an ex-student of hers, 42 year old Leigh Voysey. Family of Ms Renny, who were disinherited under the new will, have issued proceedings against Ms Voysey claiming that she forged Ms Renny's purported last will.
In response to the claim, Ms Voysey (who reconnected with Ms Renny in 2016 when she was hired as Ms Renny's carer) states that Ms Renny was concerned that her relatives intended to sell her home to property developers and that this was the reason for the change in her will in 2019. Ms Voysey admits that she wrote the new will herself but claims that this was done under the clear instruction of Ms Renny.
In practice, it is far less common for beneficiaries to raise fraud or forgery challenges where a will is prepared by a qualified legal adviser who witnesses the execution of a will. However, that is not always the case. For example, previous cases have seen fraudsters remove pages from professionally drawn wills and replace them with pages containing alternate clauses. Whilst it may not be possible to protect against all instances of fraud and forgery, steps can be taken to mitigate such risks through careful estate planning.
At the time of execution, best practice dictates that a client signs, initials and writes an abbreviated date at the end of every page of their will. It is also recommended to format text so that sentences carry over to the following page and are not easily amended by a third party. Furthermore, including text on the same page as the testator's signature prevents additional pages being inserted later.
A trusted adviser should be aware of their client's family members and ensure that their client's interests are properly protected throughout the process of preparing a will, reducing risk of fraudulent activity. Where a family member or another third party becomes involved in the will and estate planning process, an adviser should take instructions from the testator on their own where possible. If the testator indicates the wish to give instructions with a third party present, an adviser should be alive to any signs of undue influence and record a clear attendance note of the advice provided and the client's response.
Where there is any indication that a testator’s capacity may be questioned, particularly where a client is elderly or unwell, advisors will know that best practice is to follow the Golden Rule (as set out in the case of Banks v Goodfellow 1870). In practice this means seeking medical evidence to confirm that the client has the requisite capacity to prepare a will. When instructing a medical practitioner, an adviser should refer to the Banks v Goodfellow test and the Mental Capacity Act, setting out what the test entails. Furthermore a solicitor should keep detailed attendance notes throughout.
As advisors of succession planning, we should know our clients. Having full knowledge of a client's circumstances increases the likelihood of identifying those who may be susceptible to fraud and forgery.
- Is the client considered a vulnerable person?
- Do their instructions demonstrate a significant departure from previous wills and if so, have the implications been discussed?
- Are there any special needs to consider regarding any of the testator's beneficiaries?
- Is there a second marriage and are there children from a previous marriage? If so, have the merits of including a life interest or discretionary trust been discussed?
- Are they single, married, divorced or cohabiting? If cohabiting, how is the property owned and where is this documented?
- Request official copy entries of the property title and sign up to properly alerts to be notified of any applications that are made.
If a client is particularly concerned about fraudulent activity or difficulties arising post death, they may wish to consider reducing the size of their estate during their lifetime. This can be considered alongside relevant tax reliefs and tax planning opportunities. Not only are there certain gifts that could create tax savings such as gifts between spouses and nil rate band gifts if the nil rate band is still available, but clients may choose to make lifetime gifts including:
- Annual exemption: Up to £3000 per tax year
- Small gift allowance: Up to £250 per person
- Wedding/civil partnerships: Up to £5000 to a child, £2500 to a grandchild or great grandchild and £1000 to anyone
- Normal expenditure out of income: Regular payments out of income without limit
- Seven year rule: Subject to taper relief, make gifts and live for seven years
In summary, whilst attempts at fraud and forgery cannot be prevented entirely, careful estate planning can help mitigate against this. If there is reason to believe that a will has been forged or fraudulently altered, it is vital that advice is sought from a contentious probate specialist at an early stage.