Mary May & Ors v Timothy Stuart Middlemas & Anor

In a civil claim alleging that a will was forged, the standard remains the balance of probabilities. The seriousness of the allegation does not alter that standard, although the inherent probability of the allegation may be considered when evaluating the evidence. Circumstantial evidence should be assessed cumulatively rather than piecemeal. The court retains a supervisory role over wills even where the claim is undefended. A will that does not satisfy the requirements of Wills Act 1837, s 9, may be pronounced invalid and an intestacy established.

The claimants, relatives of the deceased Jesse Frodsham, challenged the validity of a purported will dated 2 January 2020. The will appointed the first defendant, Timothy Stuart Middlemas, as sole beneficiary and excluded the deceased’s partner and family.

The first defendant’s defence was struck out for failure to comply with orders requiring evidence about the preparation and execution of the will. The trial therefore proceeded on an undefended basis. The central issues were whether the signature was genuine, whether the will was validly executed, and whether the surrounding evidence established forgery on the civil standard.

1. Claim allowed. The court pronounced against the disputed will and directed that a grant of letters of administration be issued on the ground of intestacy.
2. The applicable standard was the balance of probabilities. The allegation of forgery, although serious and involving dishonesty, did not require proof beyond reasonable doubt. The inherent probability of the allegation was relevant to the assessment of the evidence, but the civil standard did not vary with the gravity of the misconduct. The court applied the approach stated in Bank St Petersburg PJSC and another v Arkhangelsky [2020] EWCA Civ 408.
3. Direct evidence of fraud is relatively rare. Circumstantial evidence may establish fraud by inference, but the court must assess the evidence with care and avoid considering each item in isolation.
4. The court retained a supervisory role in relation to wills notwithstanding that the proceedings were undefended. Having considered the expert forensic evidence, the circumstances in which the two-page document emerged, the delay in disclosure, inconsistencies in the document, and the surrounding conduct, the judge found that the will was not genuine and that the deceased had not signed it.
5. The first defendant’s failure to provide ordered evidence about the preparation and execution of the will justified an adverse inference that he could not provide a coherent, consistent and credible explanation.
6. The will’s invalidity was also supported by the statutory execution issue raised under section 9 of the Wills Act 1837. The court’s operative conclusion was that the disputed will was invalid and the estate fell to be administered on an intestacy.