Written on February 25, 2013 – 8:03 am | by Justin de Vries
Fraud is not restricted to the living. Occasionally, a fraudulent testamentary document makes an appearance and the question of validity becomes paramount. In that context, the issue of whether to retain a “handwriting expert” is raised.
The science of “handwriting analysis” can be divided into two branches: graphology, which examines handwriting to determine the character traits of the writer; and forensic handwriting analysis which is performed by questioned documents examiners who, through document comparison, determine whether the questioned document is a forgery. Graphology has been largely discredited. On the other hand, forensic handwriting analysis has enjoyed greater scientific respect with the result that handwriting experts have been called to give evidence at trial.
Although examples of cases where courts refuse to hear the evidence of handwriting experts are few, more common are cases where the court attaches little weight to the opinions given. Because forensic handwriting analysis is comparatively easy to understand (both the methodology and results), weaknesses in an expert’s opinion are relatively easy to spot. The case law demonstrates that courts are usually willing to hear the expert’s opinion, but seldom defer to the expert without evaluating the evidence for themselves.
There are two strategies when dealing with an unfavourable expert opinion: argue that the expert’s opinion is inadmissible based on the Mohan criteria (relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and properly qualified expert), or attack the reliability of the expert’s opinion once admitted.
Probably the most effective way of attacking a handwriting expert is not at the admissibility stage, but during cross-examination, where the weight to be given to the expert’s opinion can be put into issue. However, the court retains residual discretion over whether or not to admit an expert’s opinion.
In Otis v. Otis , the validity of the last two wills of the deceased were challenged at trial. Rollin, one of the beneficiaries argued that the signatures on the alleged 1980 and 1994 wills were forged. Rollin produced a handwriting expert (Ms Kruger) who opined that the signatures on those wills were traced using the 1977 will as a template. The drafting solicitor claimed he remembered the testator signing the 1980 will, even though he acknowledged that the event occurred a long time ago and his memory had faded. The Court preferred the evidence of handwriting expert over that of drafting solicitor and admitted the 1977 will to probate.
In Clifford v. Royal Bank (1976), 15 N.B.R. (2d) 473, the signature on the will was alleged to have been forged. Despite the contradictory testimony of two handwriting experts (or perhaps because of it), the Court explicitly reserved its right to perform its own signature comparison. One of the experts had identified five “points of comparison” on the signatures which the court then used as a basis for its own comparison. Based on its own findings, the court preferred the evidence of one expert over that of the other. The favoured expert was also preferred because she used a microscopic examination technique while the other expert did not.
In Belser v. Fleury, the applicant sought a declaration that a document was the final will of the deceased. No family member had seen the deceased write the document in question, and the family was split between those that thought the writing looked like that of the deceased and those that disagreed. No expert was called to give evidence. The court refused to admit the document into probate. “In these circumstances, considerable more evidence was necessary to satisfy the court the handwriting in the document was that of [the deceased]. At the very least, some expert evidence was required.”
Happy Litigating (and skiing).