Wedlake Bell LLP acted for the successful claimant in the case of Fraser v Khawaja [2023] EWHC 3143 (Ch). The facts of the case were complex and detailed, involving a significant amount of documentary evidence. However, after a 2 day hearing, the Court recorded a finding of forgery against the defendant. Given the clear attempt to commit a fraud, the Court also referred the matter to the police for investigation. The full judgment can be found here.
Background
In February 2021, the late Gerald Reading (the Deceased) died of COVID-19 aged 85. He died intestate (i.e., without leaving a will) and was survived by four maternal cousins. Several of the intestacy beneficiaries instructed Andrew Fraser of Fraser & Fraser Genealogists to administer the Deceased’s estate. However, when Mr Fraser came to apply for the letters of administration, he was advised by the Probate Registry that a grant of probate had already been issued. Following this development, investigations were commenced.
Upon obtaining a copy of the Deceased’s purported will, it quickly became apparent that this was a very curious document. In effect, the sole residuary beneficiary was an individual bearing the name “William Joseph”, described as the Deceased’s “friend”, and having an address “Mohalla FC College, Kachi Adabi, Pakistan”, which was later found to be a slum area rather than an address in itself. It also had numerous typographical and other errors in language, grammar and formatting as well as various inconsistencies which made it highly doubtful that it was drafted by a professional or by the direction of the Deceased (an Oxford educated Headteacher and charitable trustee).
Despite Mr Joseph being named as the beneficiary in the purported will, it was a Mr Abbey King Khawaja (the Defendant) who obtained a grant of probate, allegedly acting under a limited power of attorney granted to him by Mr Joseph. Wedlake Bell contacted the Defendant who advised that the Deceased was a “good friend” of his and referred to him as “Gerry”. The Defendant also said that Mr Joseph was a cousin of the Deceased, something we knew to be untrue based on Fraser & Fraser’s genealogy investigations. Upon speaking to neighbours of the Deceased, they confirmed that nobody knew the Deceased as “Gerry” and he had never mentioned any links to Mr Joseph or Pakistan generally. Our own investigations proved Mr Joseph to be an enigma.
The Proceedings
In an attempt to keep costs to a minimum, we, on behalf of Mr Fraser, made an application to the Probate Registry to revoke the grant of probate under the Non-Contentious Probate Rules 1987. We also sent the Defendant a detailed letter before action. However, the Defendant failed to properly engage with the matter throughout, simply stating that he had decided not to act “for the beneficiary any longer”. The Probate Registry considered that they had no basis to revoke the grant, despite the evidence put forward, and it became necessary for Mr Fraser to issue a claim in the High Court.
Burden of Proof and Findings
The standard of evidence required in forgery cases is high; it is a serious allegation and not a finding that will be made by the Court lightly. As the claimant in this matter, the burden of proof lay with Mr Fraser to demonstrate that a forgery had taken place. In addition to detailed witness evidence setting out the highly suspicious findings to date, he relied upon a report from a forensic handwriting expert who found there to be “very strong evidence to support the proposition that [the Deceased] did not write the signature in his name on the [purported] Will but that it is a simulation of his genuine signature style, by another individual”.
Given the extensive amount of evidence provided by Mr Fraser and the complete lack of engagement by the Defendant, it is perhaps unsurprising that after a 2 day hearing, the Chief Master stated she was “satisfied that the will does not comply with section 9 of the Wills Act and is invalid“. She went on to say that the “signature on the will is not that of the Deceased and… that [it] has been drafted as an attempt to commit a fraud and obtain the Deceased’s estate by deception…“.
Accordingly, the grant of probate issued to the Defendant was revoked and he was ordered to pay Mr Fraser’s costs on the indemnity basis. Additionally, letters of administration were granted to Mr Fraser to allow for the proper administration of the Deceased’s estate. The Chief Master confirmed that the forged will should be stored at the High Court and that the matter referred to the police.
A Wider Issue?
It is important to note that the events that occurred following the Deceased’s passing were against the backdrop of the exceptional circumstances arising from the pandemic, which is known to have affected the working practices of the Probate Registry. This may well have been a factor in the acceptance of the fraudulent will and subsequent issue of the grant of probate. However, it does raise a concern that this may be one case that was fortunately detected, whilst many others have fallen under the radar. It is unfortunate that the Probate Registry appear to be unwilling to take a more robust approach; the costs of a High Court application are likely to deter potential claimants from issuing proceedings against possible fraudsters. It will remain to be seen whether the Probate Registry reviews the way in which it responds to revocation applications under the Non-Contentious Probate Rules 1987.
Andrew O’Keeffe and Helena Taylor of Wedlake Bell’s Private Client Disputes team represented the claimant in this matter. Oliver Hilton of Radcliffe Chambers appeared on behalf of the claimant.