What Is Considered Fraud In a Will?

Executive summary

• Fraud in a will or trust can take many forms, including coercion, forgery, and improper execution. 
• Will or trust fraud can occur at various steps of the process, including the inducement, execution, or during probate or trust administration. 
• To prove will or trust fraud, evidence such as thorough documentation highlighting the deceased’s wishes, witness testimony, and forensic analysis can all be valuable in building a strong case to highlight fraud. 
• Previous case law surrounding will and trust fraud highlights the importance of having thorough documentation of an individual’s wishes, maintaining transparency within the family, and having the guidance of a skilled probate litigation attorney or professional.

Introduction

A trust instrument or last will and testament is often the most vital estate planning document. When you pass, your will guides the disposition of your property, assets, and wealth by allowing you to appoint a trusted executor to oversee your estate’s closing. Through this person, hopefully, your last wishes are accomplished.

However, a will or trust induced or executed by fraud is invalid in most states. Fraud constitutes one of the primary reasons that you can contest a will. If anyone uses fraud to interfere with the willmaker’s true intentions, the entire will may be called into question.

Will or trust fraud can occur when someone deceives or lies to the testator as they create or change their last will and testament. For example, if a person convinces an elderly person they are their long-lost child when, in fact, they have no relation to the testator and the fraudster was then added to the will, the new will would be considered fraudulent.

Understanding what fraud in a will or trust looks like will allow you to take steps to address it through the necessary legal process, upholding the integrity of the document and protecting the wishes of the will’s creator.

What constitutes fraud in a will or trust? 

Will or trust fraud occurs when a bad actor alters a will or forces someone to make changes to their estate planning documents so that they no longer reflect the true intentions of the decedent. Will and trust fraud can be carried out by family members close to a testator, a caregiver, or a personal representative of the estate. 

The following are some examples of fraud: 

• The document was created or altered by another person and passed off as the will of another person.
• A caregiver threatened to remove care from a testator unless they were added to the estate planning documents as a beneficiary.
• An individual gained access to a will or trust document and changed the document to increase the benefit they would receive. 
• A family member creates a new will to replace the original and forges the signature of the initial creator.
• A person misrepresented themselves as a distant relative of the testator in order to convince them to be added as a beneficiary.
• A personal representative of the estate willingly changes the document to increase the amount of an inheritance.

If a will or trust was created or altered using fraudulent means, it will be necessary to prove it in court so that the will can be invalidated under the eyes of the law. The above examples are only some ways that fraud can influence a will–understanding the various types of fraud more broadly will help an interested party determine if they have a case for invalidating a will. 

Types of will and trust fraud

Will and trust fraud can take many forms, from not having the document signed properly during the execution of the estate plan to being forged after the fact.

Fraud can occur in the following points of implementing or administering a will or trust:

• Fraud in inducement – This form of fraud occurs at some point during the creation of a will, such as a person deceiving or coercing the creator. 
• Fraud in execution – According to California Probate Code 6382, a will must be signed and authorized by the creator in front of two witnesses. Failure to follow this process could make a will fraudulent and invalid. 
• Fraud in probate or trust administration – Fraudulent activities in trust administration can include the failure of a personal representative to uphold the interests of the will or actions such as commingling trust assets.

The most common methods of will and trust fraud include forgery and coercion or duress. Forgery can include a family member gaining access to the document and changing it after it was approved and validated by the court. Coercion may include making an individual change their will using force or threatening to withhold care from the individual if they do not. 

Any type of fraud could potentially damage the integrity of the will and compromise the wishes of the decedent and should be addressed as soon as possible. If fraud can be proven in court, then it could lead to the entire will being considered invalid.

When is a will or trust void?

A will or trust is considered invalid or void if the will has been improperly altered, unduly influenced, or does not meet the proper legal requirements. To offer some examples of what this means, a will or trust could be considered void by the court under the following instances: 

• The will or trust was created under coercion or duress
• The creator did not have the mental capacity to comprehend their actions when they created the will or trust
• A person unduly influenced the will or trust creator to make changes against their intentions
• The document was forged in its creation
• The will was not properly signed or witnessed when it was executed 
• The will was altered after its initial creation, unbeknownst to the original creator

However, a will or trust cannot be considered void based on light suspicion. For all or part of a will or trust to be voided, you must contest the will, present sufficient evidence of fraud, and have a judge decide to invalidate the will. Determining whether these above circumstances occurred can be a challenge.

Legal grounds for contesting a will

To contest a will in states like California or Texas , you must be an interested party in the will’s execution. If you aren’t considered an interested party, you lack the standing necessary to dispute the will or any of its provisions. An interested person has a broad definition, but it prevents true strangers and outsiders from challenging a testator’s wishes. 

Interested persons can include:

• Heirs under your state’s intestacy laws
• Beneficiaries listed in the will.
• Beneficiaries listed in prior wills but excluded from the one going through probate.
• Creditors of the estate.
• Trustees or beneficiaries of a trust created by the deceased.

So, if you are the testator’s child but do not appear as an heir or beneficiary in their will, you have the standing to contest their will. However, if you are a distant relative who is not named in the will and would not be considered a legal heir under your state’s intestacy laws, you may not be an interested party that can launch a dispute.

What happens if a will is contested?

In California or Texas, a will can be contested any time before the probate court approves the final distribution and discharges the estate’s personal representative from their duties. However, if you are an interested person and receive a formal Notice of Administration, you typically have only 180 days to initiate a will contest. 

The procedures for contesting a will occur within the probate court proceedings and not as a separate legal case. The person who contests a will needs to provide enough documentation and evidence of some deficiency to stall the administration and execution of the will.

There are three possible outcomes of a will contest:

• The court finds the will valid and enforceable and allows its execution to proceed. The challenge fails, and the executor can carry out the provisions as written.
• The court finds the entire will to be invalid. If a prior, valid will for the deceased can be found, probate will instead enforce that document’s provisions and distributions. Without an earlier, enforceable will, both California’s and Texas’s intestate succession laws would govern the distribution of the entire estate. Effectively, the testator will have passed away without a will.
• The court finds certain specific provisions of the will invalid. This could be a partial or complete victory for the person contesting the will. All remaining provisions would be carried out as contained in the will, while the assets or property subject to the invalid portions would be distributed as called for either in an earlier will or by intestate law.

Forging a will: Legal implications and consequences

Forging a will or trust can come with significant legal implications for the guilty party. An individual who forges a will may be subject to civil and criminal charges—if the will has been forged to misappropriate assets above $950, they could face even harsher consequences. 

In California, the penalty for forgery, per California Penal Code Section 473, is a maximum jail sentence of up to a year. In Texas, according to Texas Penal Code Title 7, Chapter 32, the penalty can range from 180 days to two years in jail and up to a $10,000 fine, depending on the value of goods

How to report a forged will or trust 

If you suspect a will has been forged, there are several steps you should take within the legal process. Reporting a forged will often involves the following steps: 

• Gathering evidence – First, gather evidence of the will fraud to build your case, including witness testimony, previous estate planning documents, and forensic analysis if possible. 
• Seek legal representation – A lawyer will help you navigate the process of reporting trust or will fraud by helping you gather evidence, complete the necessary court processes, and offer guidance in reporting to law enforcement. 
• Petition the court – Petition the court through the probate process to contest the will’s legitimacy and ensure the fraudulent will is not used to guide asset distribution.
• Report to law enforcement – Although trust and will fraud is normally handled by the probate court, you may be able to seek damages through civil or criminal court by involving law enforcement and filing a report to press charges.
• Mediation – If a party benefits from a potential act of fraud and takes your inheritance, you may be able to accomplish a settlement with that individual without going to court through the use of an independent mediator. 

If you suspect a will has been forged, you should contact an attorney as soon as possible. An attorney can help you gather evidence to prove the case and begin filing the necessary documentation to pursue restitution through the court. 

Challenges in proving fraud in a will or trust

Proving fraud in a will can be incredibly difficult—just because someone changed their will after its initial creation, it doesn’t mean they did so under duress or without capacity, so it’s important to build a comprehensive case that proves the existence of fraud. From gathering evidence to finding witness testimony, there are several challenges in substantiating a claim that a will is fraudulent. 

Gathering sufficient evidence for will fraud

Building a strong case to prove fraud requires gathering a myriad of evidence. Many people can suspect fraud, but they do not have a case unless they can actually prove it beyond a reasonable doubt. 

Because it’s difficult to prove fraud, it’s important that you gather as much evidence and detail as possible. For example, if communications from a will’s creator demonstrate their intentions to name you as a beneficiary but their estate planning documents end up saying otherwise, this may demonstrate the possibility of fraud.

If this evidence can be paired with witness accounts that the caregiver acted maliciously leading up to the testator’s death, then this only makes the case even stronger. Previous wills or estate planning documents also serve as valuable pieces of evidence to demonstrate a testator’s true intentions and how they compare to the document in question.

Utilizing witnesses and forensic analysis

Two of the most valuable pieces of evidence in fraud cases are witness testimony and forensic analysis. If an individual close to the will’s creator witnessed the fraud occur, then they can testify before the court in order to strengthen the case. For example, if there is a witness that states they saw a family member coerce the testator or saw questionable actions from the testator’s caregiver, this can be used to build the case.

If there are no witnesses, the forensic analyst may be able to provide further guidance. The support of an expert is often necessary to identify whether there are fraudulent elements in a will. 

Forensic analysis methods may include:

• Ink analysis – Experts may be able to analyze the ink used in the estate planning documents to determine if two different inks were used at any point, signifying an unverified addition to the will.
• Personalized handwriting – If a will or trust instrument is handwritten, an expert can compare the document to other examples of the creator’s handwriting to analyze whether they match.
• Paper analysis – Forensic analysis can be used to determine if a will utilized two different types of paper, which may imply that a bad actor added to the will after its execution.

If you suspect fraud in a will, or simply just want to verify that a handwritten will is legitimate, you can seek out an expert to analyze the document. Many experts will also testify in court to help strengthen the case.

Countering defense strategies

If you are building a case to prove fraud in a will, it’s important to be able to counter the possible defense strategies that the accused may bring forward. Their defense will depend on the type of fraud involved. 

For example, an individual who benefits from a change in a will may be able to use the following defenses:

• Lack of intent to defraud – In a case where a testator may have changed their will due to someone else’s influence, the influencing party may argue that they had no intention to defraud the creator and the creator made those changes out of their own free will. 
• Mental capacity – If a person benefits from a change to a will made when it’s suspected that an individual lacked mental capacity, they may be able to build a case stating that a person in fact was of sound mind when the change took place.
• Justified influence – Influence happens all the time in wills and trusts. If a person influenced a will creator’s decision to change their estate plans through rational means without malicious intent, and the creator was of sound mind to make their own decisions, this would not be considered fraud or “undue” influence. 
• Lack of evidence – The accused party may be able to cite that there is a lack of evidence proving fraud beyond a reasonable doubt and have the case dropped so the will is executed as written. 

Given the potential defenses, it’s important to have documentation that proves the actions were, in fact, fraudulent and there was an intent to defraud the other interested parties. A skilled probate litigation attorney can help you compile your evidence and build a rock-solid case that is difficult to defend against.

Case example of will and trust fraud

The following case example demonstrates the importance of maintaining thorough documentation from a will’s creator, maintaining transparency about estate plans within the family, and seeking professional guidance. Having an attorney by your side can help you carefully navigate any fraud case.

The case of the Estate of Herschel B. McGee (1955) involved a situation where a decedent’s caregiver was suspected of fraud in the alteration of his will. The daughter of the decedent contested the new will, claiming that it did not reflect her father’s true intentions. 

Ultimately, the court ruled in favor of the daughter and invalidated the altered will. The decedent’s caregiver was found guilty of fraud, demonstrating the importance of caution surrounding estate planning when caregivers have a close relationship with a testator or may have access to sensitive documents.

A key takeaway from this case is that witnesses should always be present for any changes to a will in order to validate them as part of a formal estate plan. A testator should also maintain secure methods for storing estate planning documents in order to protect against unauthorized alterations.

Take action now: Protect your family’s legacy

Contesting a will can be challenging, and fraud is notoriously difficult to prove. You should always consult with a will contest lawyer to determine the best way to attack a fraudulent will. Having an experienced professional on your side can make a substantial difference in helping you build your case against will fraud. 

With decades of experience in will and trust administration, our attorneys at RMO have handled countless cases of will and trust fraud. In these cases, we have worked to gather evidence of fraud and build a strong case to defend the best interests of the estate. We’ll work to build a winning strategy to help you secure access to your rightful inheritance. 

Schedule a consultation with our team at RMO Lawyers to learn more about how we can help you protect your family’s legacy.