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Forged Wills and Will Fraud

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Most will disputes arise from common grounds for a will dispute such as lack of testamentary capacity, undue influence or the Inheritance (Provision for Family and Dependants) Act 1975. However, some of the less common situations that give rise to will disputes are the grounds of forgery and will fraud.

Both forgery and will fraud occur when someone has deliberately interfered with a testator’s will to change who inherits property from the testator’s estate. Some examples of fraudulent situations are when someone has deliberately destroyed someone else’s will, or where someone has deliberately told the testator something untrue to convince them to change their will. Examples of forgery include creating a fake will or writing a false signature on a will.

If either will fraud or forgery is successfully proven, the fraudulent will is revoked, as it will not be a valid will, and the estate will be divided according to the most recent previous valid will. On the other hand, if there is no previous will, the estate will be divided according to the intestacy rules.

Suspicious Circumstances may indicate will fraud

There are some situations that suggest will fraud has taken place. Circumstances that can lead to a suspicion of will fraud include:

  • The witnesses to the will have a close relationship with the only beneficiary
  • A sudden radical change between the testator’s previous will and the testator’s new will, for example suddenly leaving property that was to be divided between beneficiaries to one individual
  • Before they died, the testator became heavily dependant on the beneficiary of a new radically different will, for example a carer
  • The signature on the will appearing to be different from the testator’s signature
  • A will that was made without the help of a solicitor (a “DIY” will)
  • The witnesses were not present when the will was signed

Burden of Proof in cases of forgery or will fraud

There is a high burden of proof when challenging a will on grounds of forgery or will fraud. This is partly because fraud is a serious allegation that can have criminal implications for the defendant. It is difficult to prove that someone has interfered with the will deliberately and for this reason, other grounds for a will dispute are considered easier to prove. Another challenge of alleging fraud is that there are usually few witnesses, as the testator has died before the dispute arises. For this reason, it is often difficult to find enough evidence to support a claim of will fraud.

The evidential burden is high because claimants usually need to consult a handwriting expert for an expert opinion on whether the signature on the will is genuine, or if it has been copied. A handwriting expert will need to look at around 15 examples of previous signatures by the testator to compare them to the signature on the will and decide whether the signature is genuine.

What to do if you suspect will fraud

It is important to contact a solicitor to find out what the best approach to challenging a will is in your situation. Claimants who suspect that there has been will fraud should consider challenging the will using different grounds because of the high burden of proof in will fraud cases. The suspicious circumstances that give rise to will fraud claims can also lead to other claims that are easier to prove:

For example, a claim for lack of knowledge and approval can be made if there is evidence that the testator did not know or approve of the will, which would likely be the case if the will has been made fraudulently. A claim of lack of testamentary capacity can be made if the testator did not meet the requirements for capacity to make a valid will, which may be the case if someone has been able to take advantage of them. If one of these other grounds for a will dispute succeeds, the will is declared invalid, so the claim will have the same result for you as a successful will fraud case, but with a lower burden of proof.

Will Claim solicitors are specialist will dispute lawyers. We can advise on all aspects of your will dispute and help you whether you consider a will to be invalid, or you wish to claim for a higher proportion of an estate under the Inheritance (Provision for Family and Dependants) Act. Get in touch to book an appointment with one of our will dispute experts.

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The (almost) A-Z of a will dispute

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Will dispute? Confused by legal jargon? Our blog should help make things clearer!

The law that applies in the case of a will dispute is full of technical language, much of it deriving from years gone by, and often difficult to understand, even by lawyers who specialise in other areas of the law.  Our (almost) A-Z guide should help you get to grips with what’s going on – and if you’ve got any questions, get in touch!

Administrator (see also Letters of Administration)

If someone dies without leaving a will – ‘intestate’, their estate will be handled by Administrators – usually close relatives, who must apply for Letters of Administration to handle the estate and deal with its distribution

Beneficial Interest

A ‘beneficial interest’ – or simply ‘an interest’ in the estate is required before someone can challenge a will. People who are named in a will, or who would inherit under the rules of intestacy have a beneficial interest in a will, but the courts will occasionally allow someone with a slightly more tenuous connection to challenge a will, if justice requires it.

Caveat

If you have a concern about the validity of a will, you can enter a Caveat to stop the Grant of Probate and to prevent the estate being distributed while your claim is being considered.

Distribution

Distribution is the division of the deceased’s estate amongst the beneficiaries, in accordance with the will, or according to the Intestacy Rules. If you are worried about the validity of a will and wish to contest a will, you should enter a Caveat to prevent the grant of Probate and distribution of the estate.

Estate

The ‘Estate’ is the possessions, property, assets of the deceased, and also his debts

Executor (See also Probate)

When someone dies leaving a will, the chances are the will has appointed Executors to handle the estate and to oversee its distribution in accordance with the will. There are professional executors who can carry out these tasks, as the role of executor can sometimes be complicated and time consuming.

Fraud

There are a number of situations when a will can be challenged on the grounds that it is a fraud. Will fraud is increasingly common and can be hard to prove if the document is, apparently, signed, dated and witnessed. Will fraud can arise if a will is deliberately destroyed in order for an earlier will (or the rules of intestacy) to apply. Will fraud is also committed if the signature on the will is not actually that of the Testator, if the will was not in fact signed in the presence of the witnesses

Golden Rule

The Golden Rule is a rule that applies to solicitors drawing up wills for their clients in circumstances where there is a risk that the mental capacity of the Testator at the time the will is made may be challenged. In these circumstances, the Golden Rule is that the solicitor MUST take steps to make sure the Testator has the mental capacity to make a will – if necessary by obtaining medical evidence from a specialist.

Intestacy

When someone dies without leaving a will, they die ‘intestate’ and a series of rules – the Intestacy Rules – apply to govern the distribution of the estate.

Knowledge and Approval

When a will is properly signed and witnessed, the courts will presume that the testator ‘had knowledge’ of what was contained in the will, and ‘approved’ the contents of the will. If the will is drawn up in circumstances which “excite the suspicion of the Court” – for example if it is drafted by someone who benefits under the will and the will is very complex, it may be possible to argue that the will was not executed with ‘knowledge and approval’.

Letters of Administration

When someone dies intestate – without a will – Letters of Administration must be applied for by someone willing to undertake the distribution of the deceased’s estate in accordance with the Intestacy Rules.

Mediation

Mediation is a process through which many will disputes can be settled. Mediation uses the services of a professional mediator – a facilitator who will listen to both sides of the case, challenge, negotiate and ultimately aim to bring both sides to a resolution. It is a far less formal process than court proceedings and does not involve the parties having to face each other in the same room when emotions can run high.

Mental Capacity

A Testator must have mental capacity to make a will. He or she must know what he is doing, and what the implications of the will are. It is the Golden Rule of will making that where a Testator is old, seriously ill, or otherwise vulnerable, the solicitor drawing up the will must be satisfied that that testator has the necessary mental capacity. If necessary, the solicitor should involve a medical expert.

No Win No Fee

The basis on which we at Willclaim Solicitors can handle most will disputes. ‘No win no fee’ is exactly that – if the claim is unsuccessful, we will not be paid. If the claim is successful, we will recover our costs – usually from the other side, and if not, from the share of the estate that you receive as a result of the claim.

Personal representatives

Personal Representatives are the people who have legal authority to represent and manage the affairs of the person who has died. In the case where there is a will, the personal representatives are known as ‘executors’. Where the individual died intestate, the personal representatives are known as ‘administrators’.

Probate

Probate is a process by which a will is determined to be valid. Once the process is complete, assuming there are no problems, a grant of Probate will be made to the Executors who can then administer the estate.

Risk

As with any legal action, it’s important to weigh up the likelihood of succeeding against the risks of bringing a case. One risk to consider before bringing proceedings is whether you will be in a better or worse position should you be successful. If you are challenging a will, and succeed, meaning that there is then no will, and the rules of Intestacy apply, where will that leave you?

Settlement

A settlement is what is reached if the parties involved in the will dispute can agree the outcome without going to court. Mediation is often instrumental in achieving a settlement.

Testator

The Testator is the person who has made the will. He or she should be over 18, and must know and appreciate what they are doing

Undue Influence

While it is difficult to prove, if there is evidence to show that the wishes and intentions of a testator were entirely overridden by someone else and the testator was effectively forced into making a will that did not reflect the testator’s wishes, but the wishes of that someone else, then a will may be successfully challenged on the basis of undue influence.

Valid execution

Valid Execution relates to the process by which the will is made. The will must be signed by the Testator in the presence of 2 witnesses who must then themselves sign the document.

Will

Last but by no means least – the Will. It’s fundamental (of course) to all these claims – they are ‘will dispute’ claims after all, so there needs to be a will. A will is a legal document by which the Testator sets out who is to inherit his or her property and in what order. To be binding, the will must have been validly executed.

Got any questions? Get in touch using our email contact form, or give us a call 020 3322 5103

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