What to Do If You Suspect a Will Is Fraudulent

The integrity of a will is essential in ensuring that a deceased person’s final wishes are properly respected and executed. However, disputes arising over a will are unfortunately common, particularly where concerns arise surrounding its authenticity. If you suspect that a will has been fraudulently created, altered, or manipulated, it is crucial to take appropriate steps to challenge its validity. This article explores the different forms of will fraud, signs to look out for, and the necessary legal actions to take if you believe a will has been tampered with.

Common Types of Will Fraud

Fraud related to wills can take many forms, each with its unique implications. Understanding these different types can help you determine whether an inheritance dispute is justified.

Forgery

One of the most serious forms of will fraud is forgery. This occurs when an individual fabricates a will, forges the testator’s signature, or alters an existing will without the testator’s consent. Forgery often involves changing the beneficiaries or adjusting the distribution of assets to unfairly benefit certain parties. If a signature appears inconsistent with the testator’s known handwriting, or if there is a lack of supporting witnesses, forgery may be suspected.

Undue Influence

Undue influence takes place when someone pressures, manipulates, or coerces the testator into changing their will to benefit a particular individual or group. This often occurs when a vulnerable or elderly person is taken advantage of by a caregiver, family member, or close associate. Signs of undue influence may include sudden or drastic changes to the will, especially if these benefit a select individual who had significant access to the testator.

Fraudulent Representation

A will may be fraudulent if it was made as a result of deliberate deception. For instance, someone may provide false information to the testator to cause them to draft or amend a will in a certain way. This could involve lying about the character of a beneficiary or deceiving the testator about significant financial details.

Lack of Knowledge or Approval

For a will to be legitimate, the testator must fully understand and approve of its contents. If they were misled, incapacitated, or otherwise unaware of the document’s provisions at the time of signing, the will could be considered invalid. This situation can arise in cases where a testator had cognitive impairments, such as dementia, when the will was created.

Signs That a Will May Be Fraudulent

Detecting will fraud can be challenging, particularly when the testator is no longer alive to provide clarity. However, several red flags may indicate foul play.

Unexpected or Sudden Changes

If significant last-minute changes were made to the will that differ drastically from previous versions, this could indicate undue influence or fraud. This is particularly concerning if the amendments benefit an unexpected individual, such as a new caregiver or a distant relative.

Questionable Witnesses

In the UK, a will must be signed in the presence of two independent witnesses who are not beneficiaries. If the witnesses are beneficiaries or closely linked to a suspicious party, the validity of the will may be called into question.

Signs of Mental Incapacity

A will is only valid if the testator had the mental capacity to make informed decisions at the time of signing. If there are indications that the testator was suffering from a mental illness or did not fully comprehend the document’s contents, this could be grounds for challenging the will.

Disappearance of Previous Wills

If an earlier version of the will has gone missing or has been destroyed under suspicious circumstances, this could suggest an attempt to conceal the legitimate intentions of the testator.

Poor Drafting or Errors

Although not all poorly drafted wills are fraudulent, a document with unusual wording, inconsistencies, or errors in execution may indicate a lack of authenticity. Fraudulent wills sometimes lack the hallmarks of a professionally drafted legal document.

Steps to Take If You Suspect Will Fraud

If you have reason to believe that a will is fraudulent, prompt action is necessary. Legal challenges to a will can be complex, and time limitations may apply, so understanding the correct process is crucial.

Consult a Solicitor

Before taking any legal action, it is advisable to consult an experienced probate solicitor. They can assess the situation, evaluate the evidence, and guide you through the best course of action. Challenging a will involves legal complexities, and a professional can help ensure that you are following the appropriate procedures.

Gather Evidence

To build a strong case, you need to collect relevant evidence that points to fraud or undue influence. This might include:

– Copies of previous wills
– Medical records assessing the testator’s mental capacity
– Witness testimonies from those who were present when the will was signed
– Expert handwriting analysis to examine the authenticity of the testator’s signature
– Financial records that indicate improper transactions or suspicious behaviour

Request the Will’s Probate Records

In England and Wales, wills that go through probate become public records. By obtaining a copy of the will and accompanying probate documents, you can inspect whether any irregularities exist. If probate has already been granted, you may need to apply for its revocation.

Lodge a Caveat with the Probate Registry

If probate has not yet been granted, you can prevent it from proceeding by lodging a caveat with the Probate Registry. This stops the will from being executed while investigations take place. A caveat lasts for six months but can be renewed if necessary. This period allows time for further investigation and potential legal claims.

Initiate Legal Proceedings

If fraud is suspected, you may need to commence legal action by formally contesting the will. Will disputes are usually handled in the High Court under probate law. The burden of proof lies with the claimant, meaning you must provide strong evidence that substantiates your claim. If fraud is proven, the court may declare the will invalid, in which case an earlier valid will may be used, or the rules of intestacy will apply.

Potential Outcomes of a Will Dispute

Contesting a will can lead to various outcomes, depending on the findings of the investigation.

The Will is Declared Invalid

If fraud or undue influence is proven, the court may invalidate the will. In such cases, a previous version of the will may be reinstated, or if no earlier will exists, the estate will be distributed according to intestacy laws.

A Settlement is Reached

In some cases, the parties involved may reach a settlement out of court. This typically occurs through negotiations or mediation, where beneficiaries agree on a fair distribution of the estate without resorting to lengthy legal battles. Mediation is often encouraged to avoid costly and time-consuming litigation.

Criminal Charges May Be Filed

If a will was fraudulently created, those responsible could face criminal prosecution for forgery, fraud, or undue influence. In extreme cases, individuals found guilty of such offences may receive significant penalties, including imprisonment.

Preventing Will Fraud in the Future

While it is not always possible to prevent dishonest conduct, there are several steps that testators can take to reduce the risk of disputes and fraud.

Use a Reputable Solicitor

When drafting a will, engaging a qualified solicitor ensures legal validity and reduces the likelihood of fraudulent alterations or challenges. A professionally prepared will also helps eliminate ambiguities and mistakes.

Store the Will Securely

Keeping the original will in a secure place, such as with a solicitor, in a bank deposit box, or with a will registry, minimises the risk of it being lost or manipulated.

Maintain Clear Communication

Discussing your estate planning intentions with trusted family members and keeping them informed of any changes to the will can help prevent disputes after death. Transparency can reduce suspicion and avoid potential claims of fraud.

Regularly Review and Update the Will

Circumstances change over time, and regularly updating your will ensures it accurately reflects your wishes. An up-to-date will drafted with legal oversight reduces the likelihood of someone successfully contesting it.

Conclusion

The process of identifying and challenging a fraudulent will can be legally complex and emotionally taxing. If you suspect foul play, acting swiftly and obtaining professional legal advice is crucial. By understanding common forms of will fraud, recognising warning signs, and taking the necessary legal steps, affected parties can work to ensure that an estate is distributed in accordance with the genuine wishes of the deceased. Preventive measures, such as using a professional solicitor and maintaining clear records, can also help protect the integrity of wills in the future.