How to Recognize Fraud in Estate Planning
The goal of anyone making an estate plan is to make the probate process stress-free for their surviving loved ones as their final wishes are carried out. Usually, estate planning documents, such as a legally valid will, can mitigate the majority of potential challenges and help avoid probate court controversy. However, estate planning fraud does occur, and it can leave families devastated at the time of their grieving.
Fraudulent Estate Planning in a Last Will and Testament
A will is a legal document that states the plans for distributions of those assets that don’t already have a listed beneficiary. Assets that pass through the will are under the supervision of a probate court. These are a few ways of spotting estate planning fraud in a will:
1. A forged signature
One way for a will to be executed fraudulently is by having someone other than the person creating the will sign it. The person creating a will is called the testator. They can be assisted by someone else to make their signature or mark on the will, but it should be in the presence of a notary and two witnesses. Witnesses can be questioned about the will’s execution to help determine whether or not fraud occurred.
2. Undue influence
This is when the testator changes his/her will under pressure. Their actions cease being of their own free will. This often occurs in the case of the wealthy and elderly population. Signs that the testator was unduly influenced include cutting off communication with close loved ones and/or spending time with someone new and making them a beneficiary to the will.
3. Lack of capacity
The testator should be of sound mind while signing the will. They should understand the implications and purpose of the document. Their signature may be considered invalid if they are of an unsound mind while signing the will. Proving a lack of capacity in court can be difficult, so be sure to consult with an experienced probate attorney before considering this type of action.
Challenging a Will Based on Fraud
There are three primary elements that may constitute fraud in estate planning. These are:
You need to show false representation to prove fraud. You would need to prove that the testator relied on the false statement made to create or change their will. False representation doesn’t necessarily need to arise from outside the family. It can occur if the testator’s child makes a false statement regarding their sibling to obtain more money or to disinherit the other sibling completely, for example.
It is not easy to show misrepresentation. You would need to prove the speaker was aware of making the false statement while making it or should have known that the statement was false.
Intent is considered a crucial element in most types of legal violations. It is not enough to simply show that the perpetrator lied to set aside a will on the basis of fraud. You would also need to show that the perpetrator intended for the testator to change their estate plan based on the misrepresentation.
For instance, if an elderly patient’s nurse claims that they will take care of her cats after her demise without any intention of doing so, this type of misrepresentation doesn’t rise to the level of fraudulent inducement. This is because there is no indication that misrepresenting her intentions with regard to the patient’s cat was in and of itself an attempt by the nurse to get the patient to change her will.
However, if the nurse made the false promise to care for the cat in exchange for the elderly patient leaving her thousands of dollars in her will, this could become the basis for proving fraudulent inducement. It can be difficult to prove intent. You may not be able to show what a person was thinking at a certain point in time. Your claim will need to be backed up by a sufficient amount of evidence.
You need to show that some form of injury occurred to have any success with your fraud claim, and this injury should be attributed to the conduct that forms the basis of your claim. The injured parties in these cases are usually the representatives or heirs of the loved one’s estate, and the injury is typically some type of loss of inheritance that occurred because of the alleged fraud.
Contact a Reputable Estate Planning Attorney Today
There are few things as devastating as knowing that a loved one was taken advantage of or tricked into altering their estate plan. The experienced lawyers at Buck, Toscano & Terezkerz can help Virginia residents understand ways of avoiding fraud and contests in estate planning. We can help you with all your other estate planning needs as well. To request a personalized consultation with us today, call (434) 977-7977 or use our online form.