When a will is challenged on the grounds of fraud, it’s because a claim has been made that the will is the product of false or misleading facts or circumstances that misled the will-maker (known as the ‘testator’).

Fraud can come in many forms. The type of fraud will depend on the circumstances and is usually difficult to prove.

What is Fraud in Relation to Wills

In relation to wills, fraud is concerned with misleading or deceptive conduct during the will-making process.

Fraud may arise where a testator has been misled by false representations as to the nature of the relationship between themselves and the beneficiary, which induces them to make a will in favour of that beneficiary, where the document is not the document the testator intended to sign, or where another person signs a will pretending to be the testator. 

Fraud is different to undue influence, as undue influence involves coercion as its key element rather than misleading or deceptive conduct.

Fraud is more egregious than undue influence. It is a criminal act and can result in criminal charges.

How fraud operates within the context of wills

When it comes to the creation of a will, there are many different kinds of fraud. The type of fraud will depend on the circumstances, almost all of them being difficult to prove.

To prove fraud, a person alleging fraud must establish (a) the beneficiary was party to the deceit, (b) the deceit was practised to secure the gift or assets, and (c) the gifts must be made as a consequence of the deceit.

When a Court is satisfied that fraud has occurred during the production of a will, it invalidates the will. A Court will not grant probate for an invalid will.

If the Court finds the deceased’s last will to be invalid, the Court may ‘pass over’ the invalid will and instead grant probate for an earlier valid will, or if there is no earlier valid will, determine that the deceased died without a valid will (referred to as dying intestate) and grant administration of the estate to an administrator. 

The estate will then be distributed according to the terms of the earlier valid will or, in the case of intestacy, the rules of intestacy.

Legal Perspective on Fraud in Wills in NSW, Australia

When a person challenges the validity of a Will on the grounds of fraud, this may impact or delay probate or the administration and distribution of the estate.

It is important for the executor or administrator to comply with any responsibilities and obligations under the Probate and Administration Act 1898 (NSW) and the Succession Act 2006 (NSW) before and after receiving notice of a potential challenge to a will.

Identifying Fraud in Wills

Fraud may be identified in wills as a form of misleading or deceptive conduct that induces a testator into making a will in a particular manner. 

In fraud cases, the person alleging fraud will often need persuasive evidence to prove their case, including documentary evidence and oral evidence.

Common signs of fraudulent activity

There are a wide variety of circumstances that may signal fraudulent activity during the preparation or execution of a will. These include, but are not limited to:

• Where the testator executed a will under false or misleading statements,
• Where the testator executed a will that was different to the will they intended to sign or did not fulfil the testator’s last wishes,
• Where a beneficiary believes there are suspicious circumstances surrounding the will’s preparation,
• Where the testator had limited mental capacity or where a will was signed by someone else entirely, 
• Where a beneficiary named in a current will has had their benefit increased compared to an earlier will for no apparent reason or
• Where a beneficiary named in a current will has had their benefit reduced compared to an earlier will for no apparent reason.

Situations that raise suspicion

There may be a range of situations that may provoke suspicion of fraud in the will-making process. These can include, but are not limited to:

• Where the executor is treating the beneficiaries poorly or showing uncooperative behaviour, does not provide an estate inventory, is not transparent about the estate’s income and losses, is selling assets after notice of a will challenge, or does not provide evidence of the proceeds of a sale or up-to-date financial statements.
• Where there is suspicious financial activity or where the estate appears to be incurring unreasonable expenses,
• Where there is secrecy over the deceased’s bank or documents,
• Where a person has become suspicious of the executor’s behaviour or where they have breached their position of trust, or
• Where a major beneficiary fails to provide a paper trail or full disclosure of disbursements

These circumstances do not necessarily mean the executor has committed fraud, but they may warrant further investigation. 

Legal Consequences of Fraud in Wills

Where fraud is proven, it will invalidate that part of the will that was the product fraud.

Proving a will is fraudulent will usually alter the terms of the estate administration and the estate’s distribution. This is because the estate assets will not be distributed in accordance with the invalid, fraudulent will, but instead, the estate will have to be distributed either according to an earlier valid will or, if there is no earlier, valid will, be distributed according to the rules of intestacy.

Invalidation of the will as a whole

Cases involving fraud in NSW are uncommon, but they do occur. When a Court does find the whole of a will was the product of fraud, the Court will determine that will to be invalid and will refuse probate for it. Instead, probate will be granted for an earlier, valid will, or in the case no such earlier, valid will exist, the Court will grant letters of administration for the estate to be distributed according to the rules of intestacy.

Invalidation of a specific clause

If only part of a will is the product of fraud, the Court has the power to order that part of the will be invalid and the balance of the will to be valid. 

Allegations of fraud often arise in the context of specific gifts to beneficiaries under specific clauses. If only a clause or section of the will was the product of fraud, it might be severed, allowing the balance of the will to be admitted to probate (subject of course, to other issues and claims). 

Other potential legal repercussions

Fraud is more egregious than undue influence because it is classified as a criminal act and may constitute a criminal offence. 

If a person is found to have committed fraud in the context of the preparation or execution of a will, the police may bring criminal charges, which would be determined in a criminal Court and would require proof to the criminal standards, namely, “beyond reasonable doubt”. This higher burden or proof means that charges do not always follow where there have been findings of fraud in probate cases.

In addition to potential criminal charges, an estate or beneficiary may sue the fraudster personally for any losses suffered.

Who can challenge a will on the grounds of fraud?

Who can challenge a will made under fraud depends on the facts and circumstances of the case.

Fraud can take many different forms, and it can be notoriously difficult to prove fraud has taken place. To prove fraud, a party must establish the beneficiaries were party to the deceit, the deceit was practised to secure the gift, and the gift must be made a consequence of the deceit.

Examples of people who may have a basis to challenge a will on the grounds of fraud include a person who was named as a beneficiary in an earlier will, who has had their benefit reduced in a subsequent will in suspicious circumstances, or a person who was named in an earlier will as a beneficiary but has been disinherited entirely in a subsequent will in suspicious circumstances. 

How Empower Wills and Estate Lawyers Can Assist in Challenging a Fraudulent Will

Empower Wills and Estate Lawyers are a specialist team of experienced estate litigation lawyers who can assist you in challenging wills that may have been prepared or executed fraudulently. If you have concerns about a family member or friend who may have been duped into signing a fraudulent will, you should contact a lawyer immediately, who can help determine the best cause of action based on the facts and circumstances of each case.

Evidence and Burden of Proof in Fraud Cases

If a will appears to be duly executed by a testator who possessed testamentary capacity, the onus of proving fraud rests on those who allege it. In fraud cases, the person alleging the fraud will need to produce evidence to prove their claims, including documentary and oral evidence. 

What qualifies as evidence of fraud?

Strong claims at law can fail if they are not supported by admissible evidence.

Forensic document evidence, such as handwriting or signature analysis or forensic ink analysis, can be useful in determining fraud and whether or not various signatures or instructions were made in the manner in which they claim to have been made. A lawyer can also advise on whether the circumstances and timing of the discovery of the will, including the testator’s will-making history, have any bearing on the case.

What you need to prove

To prove fraud, the person alleging fraud must establish (a) the beneficiary was party to the deceit, (b) the deceit was practised to secure the gift or assets, and (c) the gift must be made a consequence of the deceit.

It must be clearly established that the fraudulent circumstances led to the making of the will or inclusion of the clause in question.

How to Challenge a Will on the Grounds of Fraud

Challenging a will on the grounds of fraud can be a complex process. It can often involve detailed investigations, analysis of the circumstances, consideration of the relevant legal principles, preparation of court documents, and strict compliance with legal timeframes and court timetables. We provide a step-by-step overview of the process below. 

Consultation with a solicitor

Contact Empower Wills and Estate Lawyers today for a free consultation. This is an opportunity to tell us about your legal issue and your objectives. Our lawyers will ask you questions to obtain a detailed understanding of the matter to determine whether we can assist. If we can assist, we will provide an estimate of costs and issue a Costs Agreement and our Terms and Conditions for your consideration. 

Gathering evidence of fraud

Once engaged, a lawyer will conference with the client to obtain detailed instructions. The lawyer will commence by conducting searches and enquiries with other people, entities, or agencies to obtain further documentation to support their client’s case.

Notifying other parties (ie executor and other beneficiaries)

The lawyer may then write to the executor (and beneficiaries) detailing the allegations, legal reasoning, and facts. The lawyer may make an initial offer to commence the negotiation process. 

In some cases, the dispute may be resolved outside of Court through mediation and negotiation.

In most cases, the executor will delay distribution of the estate until the dispute is resolved and in some cases, a beneficiary may be able to sue the executor personally if they distributed all or part of the estate whilst on notice of a claim. 

Initiating court proceedings

If the dispute is not able to be resolved through negotiations or mediation, the matter may proceed to Court, where a lawyer will represent you and endeavour to get you the best possible outcome.

It can take many months or even years for a matter to be resolved through the courts, and it can be a costly endeavour, particularly for the losing side, who may be ordered to pay for the costs of the estate and the successful parties.

The court process

During a court hearing, each party will have an opportunity to present their evidence, which may include documentary evidence, physical evidence, evidence from friends and family, expert evidence, medical evidence, and/or digital and electronic evidence.

If the Court is satisfied that a Will or part thereof is the product of fraud or forgery, the Court will declare that Will or part thereof to be invalid. The Court will not grant probate for an invalid will. 

Preventing Fraud in Wills

Allegations of fraud often relate to events that took place in private and can therefore be hard to identify and prove. However, there are several steps a person can take to reduce the risk of allegations of fraud arising. 

Precautions to take when drafting a will

Allegations of fraud often arise in the context of an elderly or feeble testator who has changed their will in the final moments of their life. A sudden or striking change of testamentary wishes may indicate foul play. 

For example, it may be easier to identify fraud in cases where a testator has maintained clear and consistent testamentary wishes throughout their whole life but changes their will near the end of their life, compared to a testator who regularly changes their testamentary wishes regularly throughout. 

Therefore, one safeguard a person could take to prevent fraud from going undetected is to formulate and formalise their will and related documents whilst they still have their full faculties and reduce changes thereafter. This may increase the likelihood of the fraud being discovered and remedied. 

The solicitor’s role in preventing fraud

Fraud often arises in cases where a fraudster prepares a will that contains clauses that provide a benefit to the fraudster or an associate and arranges for the testator to sign the will without the testator seeing or fully understanding the effect of the clauses. The fraudster may even arrange witnesses to witness the testator execute the will. 

The best way to prevent this from occurring is to engage a lawyer to prepare a will. An experienced lawyer will ensure the testator knows and understands the contents of the will, that they are acting on their own free will, and that the execution of the will is done in the absence of any beneficiaries.

Frequently Asked Questions

How does fraud differ from undue influence or duress?

Fraud is distinctly different from undue influence or duress. Fraud is the result of misleading or deceptive conduct that induces the testator into signing a will they do not really intend to sign or into making a will in a particular manner as a result of misleading or deceptive conduct. 

Undue influence or duress is all to do with coercion and the application of various emotional, physical, or financial pressures to force someone into making a will or maintaining a will against their wishes.

What happens if I suspect a will is fraudulent but can’t prove it?

Strong claims at law can fail if they are not supported by admissible evidence. If a person suspects fraud, they should contact a lawyer who will consider the available evidence and advise on the prospects of a claim. 

Can a will drafted by a lawyer be fraudulent?

Allegations of fraud come in many forms and most often arise in circumstances that occurred in private or as a result of subtle circumstances. 

The best way to reduce the risk of fraud when preparing a will is to engage an experienced wills and estate lawyer who may be able to detect fraud in the process.

Unfortunately, however, the nature of fraud is such that it can go undetected and occur in even formal and prudent environments – such is the nature of modern life. 

If you suspect a family member is the victim of fraud regarding the preparation of their will, contact Empower Wills and Estate Lawyers for a free consultation. 

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances and objectives.