Colleen Cropper (as the personal representative of Bernard Dimberline deceased) v Kim Elaine Dimberlaine & Ors.

Allegations of fraud remain subject to the civil standard of proof. The court must assess the evidence against the overall probabilities and the full factual context; seriousness alone does not require a heightened standard.

In evaluating disputed evidence, particularly in fraud cases, the court should test witness credibility against independently established facts, contemporaneous documents, possible motives and the overall probabilities. A purported will cannot validly be created or executed after the testator’s death to give effect to an assumed intention. Testamentary formalities must be observed.

The claimant, the deceased’s administratrix, sought declarations and consequential relief concerning a purported will dated 27 May 2017. The defendants asserted that the will was genuine and that the estate had been administered under it.

The claimant alleged that the deceased’s signature and an attesting witness’s signature had been forged after his death. The parties relied on conflicting witness evidence, documentary evidence, telephone recordings and handwriting evidence. The central issue was whether the purported will was genuine and valid.

1. Outcome. The court found that the purported will was forged. The counterclaim seeking pronouncement in favour of the will was dismissed and judgment was given for the claimant. Consequential accounts, inquiries, costs and other matters were reserved for a further hearing.
2. Standard of proof. Although the allegations involved fraud, the applicable standard remained the balance of probabilities. The court assessed the allegations in their full context and rejected any general approach that serious allegations are inherently less likely to be true. The analysis in Re B (Children) [2009] AC 11 and Singh v Jhutti [2021] EWHC 2272 (Ch) was adopted.
3. Assessment of evidence. In a fraud case, witness credibility should be tested against objective facts, contemporaneous documents, motives and the overall probabilities. The court applied that approach, giving substantial weight to the Aviva communications, the September 2018 email exchange, the conduct of the proceedings and the surrounding financial evidence.
4. Formal validity. The court held that persons cannot, after a deceased’s death, create documents intended to give effect to what they believe the deceased would have wanted. The statutory formalities governing wills must be complied with. The defendants’ failure initially to challenge the letters of administration did not establish validity of the purported will, although the court permitted the validity issue to be determined through an amended counterclaim.