The pain of a cherished loved one’s passing is only worsened when siblings or heirs have disagreements about the deceased’s final wishes. Unfortunately, money and property can cause friction between family members, which can lead to painful legal disputes that can take years to resolve. There are some cases where one or more siblings decide to contest a will; fraud is one of them.
What are the Types of Fraud?
Fraud takes many forms. In terms of a will contest, it means that one or more beneficiaries of the will used false information, causing the testator to change it to their benefit. Three of the most common types of will-related fraud includes:
Fraud Caused by Duress: This is when a person exerts undue influence over a testator to get them to change their will in a way that does not reflect their wishes. In some cases, this can a blatant as a verbal or physical threat. Yet, more often, it happens when a caregiver or family member takes control of a vulnerable person’s legal and financial documents and decisions.
Fraud in the Execution: With this type of fraud, the testator may not even realize what they are signing. Fraud in the execution of the will occurs when the person believes they are signing their own will that was drafted according to their wishes, but they are actually signing an entirely different document provided by a fraudster.
Fraud in the Inducement: In this case, the testator is compelled to change or revoke their will based on false information provided by another person. For example, say that one adult sibling convinces their elderly parent that the other sibling has a serious gambling problem and cannot be trusted with money. The parent may decide to give all of their assets to the “responsible” child. However, if they only acted out of greed and lied about the gambling issue, they committed fraud in the inducement.
What is Testamentary Capacity?
Generally, only adults 18 years old or older are permitted to create wills. Married minors or minor who serve in the armed forces are exceptions to this rule. Adults are presumed to understand the will process and the consequences of writing a will. This level of understanding is called testamentary capacity.
For a will to be valid, the testator must clearly and fully comprehend the extent and the value of all the property that is included, what it means to make a will, and how the assets will be distributed.
Fraud is more likely to occur when the testator is physically or mentally compromised in some way. A senior who has dementia or other cognitive issues can be taken advantage of by someone with bad intentions.
Why Might Someone Contest a Will?
While it is not all that common to challenge a will, it is essential that the option is available in case of extenuating circumstances, including fraud. Besides fraud, there are several grounds on which a person can contest a will, many of which are also mentioned above.
A will can be contested on the grounds of:
Age: The will must be completed by someone age 18 or older, unless the person is married or has served in the military.
Contents: Guidelines that ensure a will is valid vary from state to state. Generally, a valid will must say that it is a will of the person who wrote it and includes at least one provision, usually leaving some sort of property to a particular person. Additionally, a valid will must appoint a personal representative to oversee the terms of the will upon the testator’s passing.
Fraud or Undue Influence: As detailed above, anytime a will-maker has been misled, misrepresented, or manipulated when making or signing a will, it is likely that fraud has occurred.
Mental Capacity: The will-maker or testator must have been mentally stable when the will was created. If the will is contested in court, testimony from people who witnessed the will-maker’s mental state will be particularly important.
Witnesses: Every will must be signed and dated in the presence of two witnesses. These witnesses cannot be anyone listed to inherit property in the will. Some states have exceptions, making handwritten, signed, and unwitnessed wills valid if every word is written in the will-maker’s handwriting. These wills are easier to contest than typed wills.
What Steps Should I Take After I Suspect Fraud?
If a person suspects that a will is invalid because of fraud, it is important to take the following steps:
Contact a Probate Lawyer
Anytime a loved one dies, family relations can get tense and emotional. Children and siblings do not always think clearly. That is why it is best to seek the counsel of an attorney with experience handling tough probate disputes and elder law matters.
To create a formal complaint, the attorney managing the case will need certain evidence to prove fraud. This evidence will vary from case to case, but one example is medical records that show that the will-maker had health challenges that kept them from understanding what they were signing.
Write a Complaint
A formal complaint includes the person filing the will contest, the person who passed away, and the will being challenged. It also includes an explanation of the reasons behind the will contest and details supporting it. After consulting with the person contesting the will, their attorney will write the complaint.
File the Complaint with the Court Clerk
Next, the attorney files the complaint with the clerk of the court where the will is being probated. The clerk should make copies of the complaint, keeping the originals for the court and giving the copies to the attorney. There will likely be a fee for filing a will contest lawsuit.
What Happens After a Complaint is Filed?
Once a complaint is filed, it is served to all parties involved in the probate hearing, including the executor and all major beneficiaries. For this process, the documents might be delivered by a deputy sheriff, and the recipients complete a proof of service form to prove they received them. Certified mail can also be used as an alternative delivery method.
Any party who receives a notice of the will complaint has the right to respond. That can be a motion to dismiss the claim. If that happens, there is a motion to dismiss hearing, which is where the judge decides if the claim moves on to litigation.
What Happens During Litigation?
If the judge believes the will was signed under fraud or undue influence, they will allow litigation to proceed. There are interrogatories where various parties answer questions in writing. Documents pertaining to the case are also requested and reviewed at this stage.
Witnesses are interviewed under oath, including doctors, lawyers, and other people that can speak about the deceased’s mental state at the time they signed the will. The person suspected of fraud is usually interviewed as well.
What Should I Expect at Trial?
A will contest that cannot be resolved by this point goes to trial. The court schedules the hearing date and it proceeds like other types of civil cases. There are opening statements, both sides present their cases, witnesses answer questions and can be cross-examined by the other side.
Eventually, the judge makes their decision about whether the will is fraudulent at the end of the proceedings, or after taking additional time to review the details of the case.
Are Fraudulent Wills Common?
As unethical as it may seem to take advantage of a diminished individual solely for the sake of money or property, it happens. Fortunately, with sound legal guidance, a will contest can often be resolved without going to court, saving time, money, and painful family disputes.
Long Island Elder Law Litigation Lawyers at Korsinsky & Klein, LLP Help Clients Contest Fraudulent Wills
It is not uncommon for older individuals to be taken advantage of by family members. Fortunately, our Long Island elder law litigation lawyers at Korsinsky & Klein, LLP have extensive experience challenging wills in court. Contact us online or call us at 212-495-8133 for an initial consultation. We handle all estate planning matters to help clients secure their assets for loved ones. Located in Manhattan and Brooklyn, New York, and Lakewood, New Jersey, we serve clients throughout New York and New Jersey.