Wills created as a result of fraud: What it Means

A will created under fraud is a Will that is the product of false or misleading facts or circumstances that mislead the will-maker (known as the ‘testator’). Where a court finds a Will to be the product of fraud or forgery, the court will refuse to issue a grant of probate for that Will. This will impact the entire estate administration.

When it comes to the creation of a Will, fraud can come in many forms. The type of fraud will depend on the circumstances.

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

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 fraud will often need substantial evidence to prove their case, including providing a specific and detailed paper trail.

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

Identifying Wills Created Under Fraud

Common Signs of Fraud in Wills

Fraud can occur in many different forms and it can be notoriously difficult to prove fraud has taken place.

Allegations of fraud may arise in the following circumstances:

• where the testator signed a Will under false or misleading statements,
• where the testator signed a Will that was different to the Will they intended to sign or does not fulfil the testator’s last wishes,
• where a beneficiary believes there are suspicious circumstances surrounding the Will’s preparation,
• where there is evidence of fraud or forgery and requires a handwriting expert or there are suspicions regarding the Will’s execution,
• 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 reduced compared to an earlier will,
• where the executor is treating the beneficiaries poorly or showing uncooperative behaviour, does not provide initial 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 document’s,
• where a person is accused of executor fraud,
• where someone suspects fake creditors have been listed as estate creditors,
• 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 or are themselves accused of fraud.

If any of these circumstances arise we recommend you seek legal advice from an experienced wills and estate solicitor.

The Legal Consequences of Wills Created Under Fraud

Validity of a Will made under Fraud

Where a Court is satisfied that a Will came into existence through fraud or forgery, the Court will declare the Will invalid and will not grant probate for that 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.

Impact on estate distribution

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 Will, but instead, the money from the estate will have to be distributed either according to an earlier valid Will, or where a person passed away without a Will, following the rules of intestacy.

Legal penalties for perpetrators

Fraud is a criminal offence and where a person is found to have committed fraud, the police may bring charges. It will often depend on the strength of the evidence available to establish the fraud.

Civil remedies for affected parties

In addition to potential criminal charges, an estate or beneficairies may sue the fraudster for any losses suffered and they may have personal liability. In some cases, the amounts wrongly distributed will be paid back into the estate pursuant to a court order, in other less successful cases, no amounts are recovered.

Effects on family provision claims

Challenging or contesting a Will that was made under fraud or is a suspected forgery can potentially impact family provision claims. This is because a family provision claim is brought in respect of a particular Will, or on intestacy, so if a Will if found to be invalid and an earlier valid Will is more beneficial, there may be no need to bring a family provision claim.

A person considering bringing a family provision claim on a Will that is a suspected product of fraud or forgery, should put the executor on notice of their claim as soon as possible. This reduces the risk of them distributing assets from the estate before the dispute is resolved.

Repercussions for executors and trustees

The assets of a deceased person vest in the executor once probate is granted. This means they will hold and control the estate assets until the assets are administered in accordance with the deceased’s last valid Will.

Where a person puts the executor on notice that they intend to allege the will is fraudulent, it is best to take it seriously and not ignore the accusation. In most cases, the executor delays the administration until the dispute has been resolved. This can take many months or even years, if the matter proceeds to court.

Who Can Challenge a Will made under Fraud in NSW

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.

Can a Beneficiary Contest Probate being Granted to an Executor of a Fraudulent Will

A beneficiary who believes the deceased’s last Will was fraudulent can take steps to reduce the likelihood of the court granting probate for the Will to the executor.

After seeking legal advice, one of the first steps the beneficiary may take is to put the executor on notice that the Will is being challenged and the executor must acknowledge the dispute. In most cases, the administration is delayed until the dispute is resolved and a beneficiary may sue the executor personally if they distribute the estate. The parties may be required to attend court and the defendants may be required to attend the court to defend the claim.

By challenging the will, the claimant is, in effect challenging the named executor’s right to probate and the named beneficaires right to the estate under the terms of the Will.

If the claimant is successful, and satisfies the court that the Will was a product of fraud, the Court may find the Will to be invalid and instead, issue a grant to an executor named in an earlier valid Will, or an administrator, where the deceased died without a Will.

The court has power to revoke probate if a Will is later found to be invalid.

How to Prevent a Will Being Created Under Fraud

The best way to prevent a Will being made under fraud is to ensure all wills and estate planning documents are prepared by an experience will and estate solicitor.

If you have questions or concerns about a loved one’s Will, or suspect it has been prepared fraudulently, or believe you are a rightful beneficiary, you should obtain legal advice as soon as possible to determine the best course in relation to the estate and its personal representatives.

What should you do if you suspect a will was fraudulently created?

Empower Wills and Estate Lawyers are a specialist team of experienced probate and estate litigation lawyers. If you have cause for concern about the Will of a family member or friend, and suspect it was prepared fraudulently, its always best to contact the team of experienced solicitors today for specialist legal advice.