Many of us in the estates and trusts world have encountered a situation where a client or party has alleged that a signature or handwritten note is forged. The evidence of a forensic document examiner, or handwriting expert, is sometimes led to assist a party in establishing that the signature or handwriting is a forgery. In Chishti v. Northside Pharmacy Ltd. et al, 2021 NBQB 35 (CanLII) (“Chishti“), the court was asked to find that a signature on a letter was forged. Unlike in most estate litigation, the person whose signature was in issue was alive and capable, and the very party who was advancing the forgery allegation.

Fahim Chishti (“Fahim“), and his brother, Ayub Chishti (“Ayub“), were in a legal dispute over the ownership of a pharmacy business. Ayub claimed that ownership was a 60/40 split, with Ayub as owner of 40% of the business. Fahim disputed that Ayub was an owner and claimed that Ayub was an employee who was properly remunerated over the years. The court went through a careful review of the evidence proffered by each brother. Because the credibility of both Fahim and Ayub was at issue, their evidence was accepted by the court only where it accorded “with logic and common sense or with documentary evidence or independent testimony” that the court accepted.[1]

Part of the evidence led by Ayub to support his claim was a letter promoting the pharmacy business. The promotional letter referred to Fahim and Ayub as owners and was purportedly signed by each of them. Fahim denied signing the letter and claimed that his signature was a forgery. Fahim led the evidence of a handwriting expert who, on consent of the parties, was qualified as an expert in handwriting analysis.

The handwriting expert testified that the purported “Fahim signature” was written by someone other than Fahim. She also testified that the individual who made the “Ayub signature” was the same person who made the “Fahim signature”. The court noted that “In short, [the handwriting expert’s] opinion is if Ayub’s signature is authentic then he forged Fahim’s signature.”[2]

The court considered that there are two methods for handwriting comparison analysis: the ACE method and the ACE-V method. The latter method, while almost identical to the first, requires peer verification of the signature or handwriting. The expert acknowledged that she did not use the ACE-V method. In her view, the analysis did not require verification because the result was obvious. The court noted that the expert had made the same decision to not use the ACE-V method in other cases in the U.S. Her evidence there was ruled inadmissible as a result of her failure to perform the verification part of the ACE method. Adding to the attempts to undermine the expert’s opinion, Ayub challenged the expert’s training and apprenticeship.[3]

In the end, the court rejected the evidence of the handwriting expert. Although the court did not conclude that the ACE-V method must always be used, it found that the expert’s “failure to perform peer verification in this case is, in my view, fatal to her opinion.”[4]  The court placed no weight on the letter. In Chishti, the opinion of the expert was not the only evidence with respect to the authenticity of the “Fahim signature”. Fahim’s evidence was that he did not sign the letter and Ayub equivocated with respect to whether the “Ayub signature” was his (even though he introduced the letter as evidence in support of his claim).

Like any expert, the evidence of a handwriting expert can be challenged by the parties and accepted or rejected by the court. Where the evidence of a handwriting expert is led, it will likely be part of the evidence regarding the authenticity of a signature or handwritten document, rather than a smoking gun which is determinative of a party’s case.

[1] Chishti, at para 23.

[2] Chishti, at para 94.

[3] Chishti, at para 95.

[4] Chishti, at para 96.