Gale v Gale [2010] EWHC 1575 (Ch)

The 2002 and 2004 codicils to a will were forgeries; also, the testatrix did not have testamentary capacity at the time of the 2004 codicil; in any event, neither was signed on the date it purported to be signed but was backdated from a time when the testatrix did not retain testamentary capacity.

Conclusion

The following are the judge's conclusions (para 130):

The law can be dealt with rather shortly. The Claimant seeks to prove the 2002 codicil and the 2004 codicil. I have held that both are forgeries. That, plainly, marks the end of her claim. Her claim must be rejected. As to the 2004 codicil, there is an additional reason why the codicil must fail and that is that the Testatrix did not have testamentary capacity at the time of its execution. If my finding of forgery were wrong, the codicil would fail on this ground in any event. The same is not true of the 2002 codicil as I have held that testamentary capacity did exist on 21 March 2002. As to both of these codicils, however, if my finding of forgery were wrong, I would have held that neither was signed on the date it purported to be signed but was backdated from a time when the Testatrix did not retain testamentary capacity. Of course I cannot be sure, in these circumstances, when the signing would have taken place, but I infer from all the evidence I have set out that such signing would have taken place sometime after the execution of the 2005 settlement. I have the ESDA test evidence to guide me in dating the signing of the 2004 codicil in the late summer of 2004 at the earliest, when the Claimant admits the Testatrix lacked testamentary capacity. I do not have the same assistance in relation to the 2002 codicil. However, in the light of the fraudulent backdating of the 2004 codicil and the execution of the 2005 settlement, I have more than enough to infer that the signing would have taken place some period of time after January 2005. At all events, once fraud is established, all presumptions of due execution (and knowledge and approval) would cease to have any sway and the Claimant would not be able to establish that the codicil was executed at a time when the Testatrix had testamentary capacity and knew and approved its contents.

Citations

[2010] All ER (D) 234 (Jun)

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