How Do I Contest A Forged Will?
by Russell Aldrich | August 7, 2023
To prevail in a will contest on the grounds that the will is a forgery, a party must produce sufficient evidence to prove their case. In Texas, the standard of proof in will contests is a preponderance of the evidence, meaning that a party contesting the will must show that it is more likely than not that the will was forged.
Most frequently, this type of will contest arises out of the allegation that the testator’s handwriting or signature on the will is forged. To prove that the testator’s handwriting on the questioned document is, in fact, a forgery, the contesting party will almost always require the use of expert witness testimony by a handwriting expert with significant training and experience in the field of handwriting analysis.
What Is Handwriting Analysis In The Context Of A Forged Will?
Handwriting analysis, also known as forensic handwriting analysis, is a technique used to determine the authenticity of a document, such as a will. A handwriting expert, also known as a graphologist or a forensic document examiner, will compare the handwriting on the will in question with known samples of the testator’s handwriting. Commonly used samples of a testator’s handwriting include letters, checks, and forms or other documents written and signed by the testator prior to their death.
A skilled handwriting analyst is perhaps the most crucial tool in detecting forged signatures. The expert will look for specific characteristics in the handwriting, such as line quality, spacing, and letter formation, to determine if the writing on the will is consistent with the testator’s known handwriting. An experienced analyst can examine the signature for any inconsistencies, such as variations in style, slant, and other characteristics that may indicate that the examined document forgery. They may also use other techniques such as ink analysis, paper analysis and handwriting identification to assist them in making this determination.
It’s important to note that even if a will is a forgery, handwriting analysis is not an exact science and it’s possible that the expert may not be able to reach a definite conclusion about the document’s authenticity.
What Tools Are Available To Detect A Forged Will?
A handwriting expert has many tools at their disposal to aid them with their analysis of the contested will, including:
- Magnifying Glass. A simple yet essential tool for any handwriting analyst. A magnifying glass helps in closely examining the minute details of the signature, such as pen pressure, stroke patterns, and any irregularities.
- Digital Microscope. A digital microscope allows for a more in-depth analysis of the signature by providing high-resolution images, which can be further examined on a computer. This tool helps in identifying subtle differences in line quality, ink composition, and other details.
- Ultraviolet (UV) Light. UV light can reveal hidden or invisible ink that may have been used in the forgery process. This technique helps in detecting alterations or attempts to erase or modify the original signature.
- Infrared (IR) Spectroscopy. IR spectroscopy helps in analyzing the ink composition used in the signature. By comparing the ink’s chemical composition to that of a known genuine signature, analysts can determine whether the signature is genuine or forged.
- Electrostatic Detection Apparatus (ESDA). ESDA is used to detect indentations left by a writing instrument on a paper. This technique helps in revealing pressure patterns and potential underlying writing, which can be useful in detecting forgeries or tracing the forgery process.
- Software Analysis. Specialized software can be used to digitize and analyze the signature. These programs can compare the signature with known genuine samples, measuring various parameters such as stroke angles, speed, pressure, and line continuity.
These tools and techniques, when used in combination, can effectively detect forged documents, handwriting, and signatures, ultimately increasing the accuracy of forensic document examination.
How Are The Expert’s Findings That The Will Is Forged Presented To The Court?
If the expert determines that the will is a forgery, they will provide a report and testify in court as to their findings. The report and the testimony of the handwriting expert can be used as evidence in a probate litigation case to determine the validity of the will.
In contested matters, expert witnesses often undergo intense cross-examination by attorneys representing the opposing parties. The goal of this cross-examination is to attack or diminish the expert’s findings and to raise doubts about their skills, training, expertise, and experience. For this reason, it is important, therefore, that in addition to possessing the requisite handwriting analytical skills, the expert must also be comfortable in court and adept in presenting complex or technical information in a manner that is easily understood to both the judge and jury deciding the case.
When considering potential handwriting experts for a will contest, care should be taken to ensure that they received training and education from a recognized institution. Depending on the nature of the case, certain types of handwriting experts may be more suitable than others. For instance, in a case requiring analysis of a signature only, it may be preferable to retain an expert with a “certified graphologist” designation from the American Handwriting Analysis Foundation. Alternatively, in cases in which the authenticity of the entire will is questionable, it may be advisable to retain an expert with membership in the American Board of Forensic Document Examiners.
Can Handwriting Analysis Be Performed On A Photocopy Of A Will?
Handwriting analysis can be performed on a photocopy of a will, but it may be more challenging and less reliable than analyzing the original will. The quality of the photocopy can affect the clarity and detail of the handwriting, making it more difficult for an expert to make a definitive determination of authenticity.
When performing handwriting analysis on a photocopy, the expert will first examine the photocopy to ensure that it is of good quality and that the handwriting is legible. If the handwriting is not clear or if the photocopy is of poor quality, the expert may not be able to make a definitive conclusion.
Photocopying a document can affect the ink, paper, and other important features that an expert can use to determine whether it is authentic. Additionally, because the process of photocopying itself can alter the handwriting being copies, it may be harder for an expert to determine the document’s authenticity and increase the likelihood that the handwriting analysis will result in a finding that is “inconclusive.”
Your probate litigation attorney will help ascertain whether a handwriting expert is necessary in your case. Once it is ascertained that an expert is required, the attorney will then screen the qualifications of potential experts and ensure that their specific fields of expertise are best suited for the facts and requirements of the legal matter at hand. After retaining the appropriate expert, your attorney will work with them throughout the case, preparing them for trial and depositions and ensuring that their handwriting analysis and forensic document examination is presented to the court in a manner which will maximize your chance of a positive outcome.