Fraud and Forgery in Canadian Wills
Fraud and forgery are distinct grounds for challenging Canadian Wills. Both involve dishonest conduct around the Will's creation but differ in mechanism. This guide explains the distinction and how these challenges proceed.
Fraud vs forgery — the distinction
Fraud
The testator was deceived about facts that influenced their disposition.
Examples:
- Told a specific child was dead (when not)
- Told a specific person had wronged them (when not)
- Told a beneficiary was financially well-provided (when not)
- Told a beneficiary had specific objectionable behaviour (when not)
- Misrepresented contents of Will to a testator who couldn't fully read
The testator actually signed the Will (it's real), but the decision-making was based on false information.
Forgery
The Will itself is fraudulent — testator never signed or didn't sign the document presented.
Examples:
- Signature forged on a document the testator never saw
- Pages substituted in a Will after legitimate signing
- Entire Will fabricated after testator's death
- Codicil added without testator's involvement
The Will is fake; testator didn't actually create it.
Fraud — common scenarios
Lying about another beneficiary:
Caregiver tells elderly testator: "Your son hasn't called in years because he doesn't care about you." Reality — caregiver intercepts and discards son's letters and calls. Testator disinherits son based on false information.
Lying about beneficiary characteristics:
Beneficiary tells testator: "Charity X is corrupt and misuses funds." Reality — false. Testator removes the charity from Will based on misinformation.
Misrepresenting contents:
Testator with limited literacy is presented with Will and told it says one thing; actually says another. Specific to evidence of misrepresentation.
Forgery — common scenarios
Signature forgery:
Will presented after death; testator's signature appears but doesn't match. Handwriting analysis reveals forgery.
Page substitution:
Testator signed original Will; pages 2 and 3 substituted after signing with different provisions. Original pages might have shown different terms.
Fabricated Will:
Someone creates a Will from scratch after testator's death and forges signatures. Witnesses are either complicit or also fictional.
Forged codicil:
Original Will is genuine; codicil added after death is forged.
Proving fraud
Evidence often includes:
- Testimony about communications with testator
- Documents (letters, emails, recordings) showing what testator was told
- Testimony from family/friends about testator's stated beliefs
- Records showing testator's actions consistent with false belief
- Specific to demonstrating both the deception and its influence on the disposition
Burden of proof:
- Challenger generally bears burden
- High standard given seriousness of allegation
- Specific to civil burden (balance of probabilities) for Will challenge
Proving forgery
Evidence often includes:
- Handwriting analysis (forensic expert comparison)
- Documents showing testator's actual signature pattern
- Witness testimony from genuine witnesses (where applicable)
- Medical records about testator's state at time of alleged execution (e.g., hospitalized and incapable)
- Specific to physical evidence of fabrication
Special considerations:
- Original Will document examination (paper, ink, age)
- Specific to specific forensic analysis
Consequences if proven
Civil
- Will invalidated (whole or partial)
- Prior valid Will applies; or intestacy if no prior
- Specific to provincial procedures
- Distributions reversed if already made (potentially)
Criminal
Forgery is a Criminal Code offence in Canada:
- Section 366 of the Criminal Code defines the offence of forgery
- Section 368 addresses using, dealing with, or acting on a forged document (uttering)
- Indictable offence; substantial penalties possible
- Specific to circumstances
Fraud can also be criminal depending on circumstances.
Civil action for damages
Person who fraudulently induced Will or forged Will may face civil liability beyond just Will invalidation. Specific to damages caused.
How to protect against fraud
For testators:
- Make Will with independent lawyer
- Don't accept information about other beneficiaries from interested parties without verification
- Keep direct communication with family
- Specific to maintaining clear communication channels
For families:
- Maintain contact with elderly relatives
- Document communications
- Watch for isolation patterns by caregivers or new friends
- Specific to noticing signs of manipulation
How to protect against forgery
For testators:
- Use lawyer-prepared Will with proper execution
- Independent witnesses (their identities documented)
- Store original securely
- Specific to making forgery difficult
For executors:
- Verify Will authenticity before applying for probate
- If concerns exist, consult lawyer immediately
- Specific to handling questionable documents
Specific Canadian case examples
Canadian case law includes various fraud and forgery decisions. CanLII has searchable case law. Specific cases vary by province; both successful challenges (Will invalidated) and unsuccessful challenges (Will upheld despite allegations) exist.
What to do if you suspect fraud or forgery
Immediate steps:
- Consult Canadian estate lawyer
- Preserve evidence (documents, communications)
- Don't engage with potential wrongdoer beyond necessary
- Specific to time-sensitive provincial procedures
Civil challenge:
- Application to court within provincial limits
- Specific evidence presented
- Specific to outcome
Police report:
- For forgery, may be appropriate
- Specific to circumstances
- Coordinate with lawyer
What we focus on at It's Simple Will
The Will Creator produces Canadian Wills with proper execution requirements. The platform's specific safeguards (digital signature audit trail, witnessing requirements per provincial law) provide significant protection against later forgery allegations.
Related guides
Citations & sources
- [1]Criminal Code of Canada — Forgery — Government of Canada / Department of Justice
- [2]CanLII — Canadian Legal Information Institute — CanLII
Frequently asked questions
What's the difference between fraud and forgery?
Fraud means the testator was deceived about facts that influenced their disposition (e.g., 'Your son is dead' when he isn't, causing testator to leave him out). The testator actually signed the Will but the decision was based on deception. Forgery means the Will itself is fake — testator never signed or didn't sign the document presented.
How is forgery typically proven?
Handwriting analysis (forensic comparison of signatures); witness testimony (people who knew the testator and can speak to authenticity of signature or events around alleged execution); medical records (testator's state at time of alleged execution); inconsistencies between the document and testator's known patterns or statements.
What are common fraud scenarios?
Telling the testator that a specific person (child, sibling) is dead or has wronged them when not true; falsely representing the contents of the Will to a testator who can't read it well; deceiving a vulnerable testator into signing what they thought was something else.
What's the difference from undue influence?
Undue influence is coercion overpowering free will; the testator is pressured to make a disposition. Fraud is deception about facts; the testator makes a disposition based on false information. Both can invalidate a Will but involve different mechanisms.
How common are these challenges?
Less common than capacity or undue influence challenges, but they do occur. Forgery cases especially can result in criminal charges in addition to Will invalidation. Specific to circumstances.
What happens if proven?
Will is invalidated (in whole or in part). Prior valid Will applies, or intestacy if no prior valid Will. Criminal charges may also follow for forgery (Criminal Code offences). Specific to circumstances and provincial proceedings.