What is a fraudulent Will?

08 Jun 2020

Netflix’s Tiger King gripped the nation during lockdown with viewers being divided over their feelings towards Joe Exotic and Carol Baskin. The latest twist in the tale was when a Sheriff came forward to say that he believes Carol Baskin’s husband’s Will was forged.

To some, Will forgery sounds exciting and there have been people over the years who have abused positions of trust to forge Wills and gain financial benefit. There are a few different types of, not only Will fraud, but also fraud during the administration of an Estate. The three types of Will fraud usually talked about are:

  1. Breach of Trust (where the Executor of the deceased’s Estate abuses their powers usually for their own financial gain)
  2. Fraudulent calumny
  3. Destruction, amendment or forgery of Wills

Executors abusing their position illustrates why it is so important to choose your Executors wisely. One example would be in Anita Border’s Estate. Mr Loveday was the Executor and the Estate was divided 50/50 between two friends of the deceased, one of whom was Mr Loveday’s partner. The other beneficiary never received anything from the Estate and Mr Loveday instead spent the money on himself and his partner. In November 2017 he was jailed for 6 months after admitting the fraud.

What is fraudulent calumny?

Fraudulent calumny is the result of someone making deliberately false representations to a testator which then turns them against someone whom would otherwise have benefitted, resulting in them leaving that person less. Proving fraudulently calumny can be tough because it means being able to show that someone has deliberately said untrue things to the testator about someone else to induce them to alter their Will. It also requires proving that the person who made the statements knew they were untrue.

With homemade Wills there is generally no record of why someone has made a Will. This emphasises the need for taking professional advice. When I or my colleagues meet with a testator, we document everything they tell us and this could be useful evidence in a later case. In addition, where the testator seeks to exclude someone who people might think they should have benefitted or who would have previously benefitted in their Will we will make sure we ask the reasons and, if we think the Will might be challenged, we will ask them to write a letter that can be kept with the Will to explain their reasoning and be used if there is a challenge. As such, if fraudulent calumny had taken place and false representations had been made it is highly likely we would have a record of the reasons why.

And what of will forgery itself?

Some people forge Wills by re-writing the Will and forging the signature. Some might pretend to be the testator.

Other incidences of Will forgery are somewhat simpler. For example, following the testator’s death, someone may find the Will and perhaps, being the only child of the testator, sees that they do not receive the entire estate, with the bulk of the assets being left to charity. They might destroy the Will and if no previous Will can be located then it would be deemed that the intestacy rules apply which would be more beneficial to that child. Again, taking professional advice can be important because we can hold your Will safely and securely, meaning that the original would not be in your house for someone to find and destroy after your death. Yes they could destroy it once it has been released to the Executors, but there would be a record of the Will having existed at the date of death.

If you would like assistance in preparing a Will, please don’t hesitate to contact Trethowans here today or call on 0800 2800 421 and one of our specialist private client solicitors will be happy to help.

Our Dispute Resolution team can also help you if you think you have been the victim of will or probate fraud.

Author

Mihiri Gajraj

Partner