The Probate Guide to Fraudulent Misrepresentation

Fraudulent misrepresentation, occurs when a false statement is knowingly made about an important fact, with the intent that the representation will cause another to act upon it, and the party relying on the representation is injured or damaged as a result. This can be the basis of legal action in some probate situations. When an individual makes a false statement, knowing that it is false and intending for another person to act on it, they may have committed fraudulent misrepresentation.

What are the four elements of fraudulent misrepresentation in probate?

Under Florida law, there are four elements of fraudulent misrepresentation in probate:

  1. Making a false statement about a material fact
  2. Knowing that the representation is false
  3. Intending for the representation induce another to act on it
  4. Causing injury by the party acting in reliance on the representation

 Fraudulent misrepresentation may also occur when someone should have known a statement was false or if a party intentionally withholds information.

However, not every false statement can lead to a claim of fraudulent misrepresentation.  The statement must be about a material fact. A fact is considered material when it plays an essential role in the decision making of an individual. A fact may be considered material if an individual would not have taken the action they did but for the false statement.

How do you prove fraudulent misrepresentation?

To prove fraudulent misrepresentation, the elements above must be proved. Additionally there must be detailed factual evidence to support each of the four elements of the claim.

Can you sue for false representation in a will or trust?

Yes, you can sue for false representation in a will or trust.

 Probate fraudulent misrepresentation litigation occurs when an interested party has a claim for fraud. However, to substantiate your claim, you must be able to provide detailed factual evidence  to satisfy each of the four elements of fraudulent misrepresentation.

 A few examples of situations where fraudulent misrepresentation may occur include:

  • Undue influence, coercion, or fraud in the creation of a trust or will
  • Will contests and administrator appointment hearings
  • Executor or trustee fraud
  • Power of attorney abuse
  • Formal accountings
  • Spousal elective share fraud

What is fraudulent vs negligent representation?

Fraudulent representation occurs when someone intentionally misrepresents a material fact, whereas negligent representation involves someone transmitting a misrepresentation but may not necessarily know it is false. 

Under Florida law, there are two separate legal theories you can use to recover for injuries caused by misrepresentations: fraudulent misrepresentation and negligent misrepresentation.  While the two causes of action are very similar, fraudulent misrepresentation requires someone to intentionally make a false statement or withhold a material fact. Negligent representation, on the other hand, occurs when a party makes a false statement but does not know that it is false. 

When do I need a probate attorney?

If you believe that someone has misrepresented information at any stage of the probate process or in the creation of a will or trust, you should contact a probate attorney. With the guidance of an experienced probate lawyer, you may be able to use a claim of fraudulent or negligent misrepresentation to challenge a fraudulently executed will or remove a thieving executor. 

Even if your situation does not meet the elements of fraudulent or negligent misrepresentation, there are many different ways a probate attorney can protect your inheritance rights. You should consult with a probate lawyer as soon as you suspect fraud.

Have questions? We’re happy to discuss.

Call (786) 761-8333 or email [email protected]

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About RMO Lawyers, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit

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About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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