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Fraudulent behaviour and suspecting the validity of a will (18 September 2019)

Date: 18/09/2019
Duncan Lewis, Legal News Solicitors, Fraudulent behaviour and suspecting the validity of a will

One of the main reasons people wish to contest a will is due to fraudulent behaviour. When administrating the estate, the executor has the obligation to act in the estate beneficiaries' best interest however there are cases where the executor abuses this obligation and compromises the validity of the will through fraudulent behaviour.

Examples of an executor behaving fraudulently include:

  • Making false and defamatory statements about other beneficiaries

  • Manipulating figures for their own benefit

There are a number of factors that can expose a potentially fraudulent will. When suspecting the validity of a will, the following are points to look out for:

  1. Unexpected, sudden, or anomalous changes to the will.

  2. Changes made immediately prior to the death, naming new or unfamiliar beneficiaries.

  3. The contents of the will not reflecting the testator’s stated wishes.

  4. All witnesses to the will are untraceable or have passed away.

  5. All witnesses to the latest will are people close to the new beneficiary rather than the testator.

  6. Withdrawals or transfers of money made following the death.

  7. A new individual being added to the testator’s bank account preceding the death.
  8. The appointment or change of an unexpected executor ahead of the death.

  9. False debts.

  10. Emails requesting payments to third parties.

  11. Individuals claiming to be the solicitor or executor who are not the appointed people.

  12. Cash reserves or items of value missing from the home of the deceased.

  13. The signature or any handwriting does not correspond to that of previous wills.

  14. The person who benefits most from the will was instrumental in making the will.

  15. What to do if fraud is suspected

    In the event of suspected fraud, contesting the will requires a high degree of proof which must be proved beyond reasonable doubt that fraudulent behaviour has occurred. Outright forgery would be seen as an example and usually involves the evidence of a handwriting expert as well as evidence relating to the materials used in the will.

    Where dishonest behaviour has been suspected, it may be easier to prove that the testator did not have the knowledge and approval of the contents of the will for it to be considered valid. If there is proof of testamentary capacity and due execution, there is usually a presumption that there was sufficient knowledge and approval. However, the court should be satisfied that the will reflects the true intentions of the testator at the time of signing (Fuller v Strum [2002] WLR 1097). In suspicious circumstances, the court will therefore require proof of knowledge and approval, and the higher the degree of suspicion, the more evidence will need to be produced.

    Either way, if there is a suspicion of fraud, the will should be challenged in court at the earliest opportunity to ensure that it does not enter probate. If the challenge is successful, the estate will either be distributed according to the previous valid will or, if there is none, the law of intestacy will be applied and the assets in the estate will be distributed to surviving relatives accordingly.

    Author Simi Gupta is a legal executive in the Wills and Probate department at Duncan Lewis Solicitors working under director Caroline Roche. She offers advice and assistance on matters involving Lasting Power of Attorney and inheritance tax as well as various matters pertaining to wills and probate.

    Contact Simi directly on 020 3114 1253 or at simig@duncanlewis.com.

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