How to Recognize Fraud and Undue Influence in Wills and Estates

It is a challenging and stressful time losing a parent who has lived a long life.  So many arrangements have to be made and so many things have to be taken care of.  One of those things is the estate that was left behind.

After a will has been probated the executor begins the process of distributing the assets to the beneficiaries.  This can be straight forward or wrought with disagreement and dispute.  In the case of the latter, you need to be on the lookout for fraud, dishonesty and questionable behavior.

These matters can be complex and here are 4 situations to consider.

What was the relationship between the testator (the person who made the will) and the beneficiary or any others who may benefit?

Some examples of fraud can be pretty obvious.  If your Father or Mother had a properly executed will in place for years, were still living in their house and being cared for by a neighbor or friend. And that person suddenly is the primary beneficiary in a new will, that you didn’t know about this should obviously be questioned.

Undue influence is a species of fraud that occurs where a person makes a testator execute an instrument they would not have otherwise executed.  If the new will leaves nothing to the children who were beneficiaries in a previous will then the new will can be challenged and nullified.

To contest a will, you must retain a probate or estate litigation lawyer who can file a lawsuit on your behalf.

What was the physical and mental condition of the testator before death?

Unfortunately, when our parents get on in age and into their 80s and 90s some conditions can affect their minds.  A once healthy, brilliant and sharp mind can change and parents can begin to struggle with short and long-term memory.

If a will was changed or a new one was executed when one of your parents was suffering mentally, that will can be contested.  In these instances, your lawyer would look for proof that your Father or Mother was suffering from a cognitive illness.

Medical records or testimony from the specialist doctor, who treated them before the will was changed, is the strongest evidence to secure in order to have a will thrown out.

Be aware of the conduct, character and actions of the person that benefited the most in the will or trust.

In this day and age, it is not uncommon for families to include step-brothers, half-sisters and others. In most cases expanding familial relations leads to a happier and more fulfilling family experience for everyone.

In some cases, it presents challenges especially with large estates that include ranch property, houses, vacation homes and large financial investments. If a will or trust was changed late in a testator’s life and new beneficiaries were introduced, it should be questioned.

It is important to know if the main beneficiary has any history of fraud, deceitful or untrustworthy behavior. As surprising as it may seem there have been cases where a testator, in their late 80s or early 90s was driven to a law office where a prearranged meeting was organized for the sole purpose of changing a will.

An experienced estate litigation attorney will listen to your concerns and uncover the facts behind another person’s behavior and actions.

Was the will executed properly?

A will or change to a will, known as a codicil, must be executed properly.  In Texas, there are strict rules that must be adhered to.  Unless the will is written entirely in the testator’s handwriting, a holographic will, there must be two witnesses present when the testator signed the will.

The two witnesses must be over 14 years of age and must sign the will in the presence of the testator.  The signature of the testator must be valid and not the product of forgery or fraud. The dates, page numbers, signatures and formatting on a will should be correct.  If the document looks suspicious or odd in any way it may be the product of undue influence.

An experienced estate and probate litigator can represent you in these matters to ensure that the wishes of your parents are achieved.  Don’t let yourself be bullied or taken advantage of, most lawyers offer free phone consultations so take the first step and make the call.