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Court of Appeal Rejects Tangential Attack on Will Dispute Judgment

Judges are wary of those who attempt to pull the wool over their eyes but, if a court judgment is obtained by fraud, it is very unlikely to survive an appeal. As a Court of Appeal ruling in the context of a bitter will dispute showed, however, allegations that justice has miscarried are easier to make than they are to prove.

The case focused on two wills made by a businessman. His daughter and her family were favoured in the first will and one of his sons and his family in the second. After a trial, a judge ruled the second will invalid because it had been signed by only one witness. He also found that the first will had been revoked by a letter of revocation. On that basis, he ruled that the businessman had died intestate.

In challenging that outcome, the daughter argued that the letter was in part a forgery and therefore invalid. She presented fresh evidence which was said to indicate that her brother and a witness to the letter had set out to fraudulently mislead the judge and had given perjured evidence. They hotly contested those allegations.

Dismissing the appeal, the Court emphasised the importance of finality in litigation and that judgments are not set aside lightly. It was not sufficient for the daughter to show that evidence given before the judge was mistaken or even that a witness had committed perjury. She was required to establish nothing less than that the judgment was obtained by fraud.

She had failed to meet that stringent test in that the fresh evidence was highly tangential to the factual issues that the judge was required to decide. It invited the Court to draw inferences from events that post-dated the letter and was not capable of establishing either that the witness had perjured himself or that his alleged perjury was procured by or knowingly relied upon by the brother.

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Published
9 March 2021
Last Updated
13 June 2021