Probate lawBy Lesley King, College of Law, LondonMichael Fuller v Geoffrey Bernard Strum LTL 2 January 2001Execution of will expert evidence as to whether or not signature a forgery lack of...Michael Fuller v Geoffrey Bernard Strum LTL 2 January 2001Execution of will expert evidence as to whether or not signature a forgery lack of knowledge and approval effect on willA couple of interesting points arise from this case on the weight to be attached to expert evidence and the approach to be taken where a testator lacks knowledge and approval of part of the contents of a will.The facts were that the deceased made a new will shortly before his death leaving a modest legacy to an old friend (G) and diverting the bulk of his estate from his adopted son (S) to F and members of Fs family.

It appointed F as executor.

S claimed that the signature was a forgery or, if it was not, that the deceased had not known and approved the contents of the will.There was a joint handwriting expert whose opinion was that there was very strong positive evidence that the deceased's signature was a forgery.

However, F and the attesting witnesses denied this stating that the deceased had signed the will, although in a highly agitated state.Despite the evidence of the expert Jules Sher QC, having listened to the witnesses present at the execution of the will, was unable to accept that the signature was a forgery.

This would have involved finding that there was a conspiracy to forge the signature.

He concluded that the peculiarities in the signature could be attributed to the deceaseds agitated state.The will was extremely rude about S and the judge accepted that this was so out of character that it cast serious doubt on whether or not the deceased had known and approved the contents of the will.

He concluded that apart from the legacy to G where the impetus must have come from the deceased, there had to be serious doubts as to whether the deceased knew and approved of anything in the will.

It was, therefore, appropriate to find against the appointment of F as the executor of the will and the entirety of the dispositive contents thereof other than the legacy in favour of G.

In Re W (enduring power of attorney) The Times, 10 January 2001Enduring power of attorney burden of proof when challenging registrationThe Court of Appeal upheld the decision of Jules Sher QC [2000] CH 343.

The Court agreed that as a result of the wording of Enduring Powers of Attorney Act1985, section 6(6) makes it clear that it is for the person objecting to registration of a power of attorney to prove that there are grounds justifying non-registration.

The objectors had relied on the words of Lord Hoffmann in In Re K (enduring power of attorney) [1988] Ch 310 to the effect that the evidence should show [the donor] has understood the various effects of granting an enduring power of attorney and had claimed that once there was some evidence of lack of understanding the burden shifted to the attorney to prove that the donor had the necessary understanding.

The Court of Appeal rejected this argument and doubted whether Lord Hoffman had intended his words to relate to the question of burden of proof.