Lord Ordinary reduces codicil to will after finding that deceased’s second wife forged his signature

About this case:

• Citation:
  [2023] CSOH 57
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Malcolm

David Niven and Carole Melaisi, the children of the late Alexander Niven and his first wife, argued that his second wife, Irene Niven, who owned a half-share in the matrimonial home, had forged the signature to make the will more favourable to herself and her son.

The case was heard by Lord Malcolm. Tosh, advocate, appeared for the pursuers and A Stevenson, solicitor advocate, for the defender.

Obvious errors

In late 2016 the deceased made a will appointing the defender and his solicitor Grant Johnston as executors and trustee. The will provided that if he died before his wife the trustees would hold his half-share in the property for her in liferent. On her death or disavowal of the liferent, it would be shared equally between his two children, subject to modification by any subsequent testamentary writings.

On 27 April 2020, Alexander Niven died. The trustees proceeded to perform their executry duties. In November 2021, when these were nearly complete, the defender informed Mr Johnston of a codicil which stated that the deceased left the house in its entirety to her, with one half going to her son Stuart Niven if she predeceased him and the other half split equally between the pursuers. The codicil bore to have been signed by the deceased in January 2020.

It was alleged by the pursuers that the signature of the deceased on the codicil was a forgery. This was based on the signature displaying factors consistent with the defender’s handwriting, supported by a handwriting expert, and the document containing simple and obvious errors which the deceased, a meticulous and careful man, would not have committed. The defender’s position was that the deceased had mistakenly begun signing the document with a pencil and overwrote with a pen when he realised his mistake.

For the pursuers it was submitted that the evidence of their handwriting expert ought to be accepted. The questioned signature had specific similarities with the defender’s writing and was wholly different from the deceased’s signature. The long delay in the production of the codicil and the implausibility of the defender’s explanation that she was wating until after her son’s wedding to reveal the document to avoid family absences all pointed to the falsehood of her claim.

Not likely or compelling

In his decision, Lord Malcolm said of the evidence: “All the evidence points to the late Mr Niven being a careful and meticulous man. He instructed his longstanding solicitor to draft his will. On the salient points, including the liferent, it was an unremarkable document which would have been easily understood by anyone of ordinary intelligence. If there was anything which Mr Niven did not grasp or was unhappy about, there would have been no difficulty in consulting Mr Johnston, and likewise in respect of any desire to change his will. Different explanations have been given for the failure to do that, none of which are convincing.”

He continued: “If the evidence that Mr Niven signed the codicil is to be accepted, it would follow that he decided to alter his will in an obviously significant way and thereafter chose not to tell either his children or his solicitor. Given the evidence as to his character, his relationship with his children, and his longstanding reliance on Mr Johnston, both propositions are unlikely. Furthermore while various accounts have been proffered by Irene Niven by way of explanation for the change in his testamentary provision regarding the house, I find none of them likely or compelling.”

Turning to the signature itself, Lord Malcolm said: “The physical evidence matches someone being dissatisfied with a pencilled guideline, attempting to erase it, then starting again. As in the questioned signature, Irene Niven’s handwriting is shaky, as one would expect from someone with tremors. I do not accept that the shaking in court was wholly explained by stress, nor her evidence that she does not have tremors. Moreover the codicil has errors which it is unlikely that Alexander Niven would have tolerated.”

He concluded: “The burden of proof on those alleging the forgery is a heavy one; nonetheless after giving the matter careful consideration I am of the view that it has been discharged. For all the reasons outlined above neither Irene Niven’s evidence [or that of the alleged witness to the signature] is accepted as being credible and reliable.”

Decree of reduction of the relevant part of the codicil was therefore granted. Lord Malcolm further interdicted the defender or anyone on her behalf from transferring or dealing in any way with the deceased’s half share in the property.