Everything You Need to Know About Will Fraud
Will fraud is a form of financial elder abuse where an individual exerts undue influence or fraudulently induces an older person (the creator of a will known as the will’s “testator”) to dispose of their property in a manner contrary to their true intentions. It can be accomplished in several ways, such as through trickery, forgery, coercion, and undue influence or taking unfair advantage of an older person’s diminished capacity. If you suspect that someone you care about is the victim of will fraud, a California financial elder abuse attorney can help you investigate and pursue legal action.
Who Is Likely to Commit Will Fraud?
While anyone can commit will fraud, the perpetrators of will fraud typically are people who are close to the victim. The closer the perpetrator is to the victim, the easier it will be to gain the victim’s trust and secure access to their will and other estate planning documents and arrange for changes. In some cases, the perpetrator may already have access to the victim’s sensitive personal and financial information through their relationship with the victim. Potential perpetrators of will fraud include:
- Family members
- Close professional colleagues
- Healthcare providers
- Counselors and therapists
- Financial advisors
- Members of the clergy
Complete strangers may also commit will fraud. For example, a scammer could contact the testator claiming to be a “long-lost relative” with the intention of securing a benefit from the will.
Types of Will Fraud
Will fraud comes in many forms, some of which are more sophisticated than others. The most common types of will fraud include:
Fraud in the Creation
Fraud in the creation of a will occurs when the testator relies on false, misleading, or outdated information when drafting the will. For example, it could occur when the perpetrator informs the testator that he or she no longer owns a particular asset (e.g., a diamond necklace was stolen) or that an intended beneficiary is dead when such information is untrue.
Fraud in the Execution
Fraud in the execution of a will occurs when the perpetrator forges the signature of the testator or misleads the testator as to the contents of the documents he or she is signing. For example, the perpetrator could surreptitiously edit the testator’s original draft to include provisions more beneficial to him or her, which the testator then signs, unaware of the changes. We have also seen cases where the individual who set up the will to benefit from it impermissibly acts as a witness.
Fraud in the Administration
Fraud in the administration of a will occurs when the perpetrator (usually the executor of the will or the testator’s personal representative) takes actions that are contrary to the testator’s wishes. This could occur, for example, by commingling personal assets with estate assets, disposing of property against the terms of the will, or reducing a particular beneficiary’s inheritance.
Duress and Coercion
Duress and coercion in the estate planning context occur when the perpetrator makes threats against the testator that are intended to coerce the testator into changing the terms of his or her will. It can also take on a darker dimension, such as when the perpetrator uses physical violence or emotional abuse to achieve their ends.
Undue influence is a more complex and long-term form of will-related fraud. Under California law, it occurs when the perpetrator engages in “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.”
It may arise in situations where the following three elements are present:
- A victim who suffers a vulnerability, such as a vulnerability related to age, disability, injury, education, impaired cognitive function, isolation, or dependence
- An influencer with authority over the victim, such as that conferred by the influencer’s status as a fiduciary, caregiver, family member, healthcare professional, or legal or financial advisor
- Tactics used by the influencer to control the victim’s actions, such as controlling the victim’s necessities of life (e.g., food, medication, transportation, etc.), limiting their access to friends and family members, and exercising authority over the victim’s financial, legal, or medical affairs
Undue influence can often be difficult to spot since there is a fine line between “caregiver” and “undue influencer.” If you believe that someone you care about is the victim of undue influence, please contact a California financial elder abuse attorney.
Legal Penalties for Will Fraud
Perpetrators of will fraud face a variety of criminal and civil penalties for their actions.
Will fraud can expose its perpetrators to a variety of different criminal penalties. At a basic level, criminal prosecutions for will fraud could be brought under the following sections of the California Penal Code, depending upon the circumstances:
- Theft crimes, including petty theft (PC § 484), grand theft (PC § 487), and embezzlement (PC § 503)
- Forgery (PC § 470)
- Perjury (PC § 118)
If the will fraud was perpetrated against an elder — as many cases are — the perpetrator may be charged under California’s Crimes Against Elders Act. This law applies to individuals who commit violations of laws related to theft, embezzlement, forgery, fraud, and identity theft against seniors.
The perpetrators of will fraud can also face a variety of civil penalties, depending upon their role in the fraud and their relationship with the testator. These could include:
- Removal as executor
- Ineligibility to take under the will
- Liability for enhanced damages, including attorneys’ fees, pain and suffering damages, and punitive damages
Speak to a California financial elder abuse attorney for more information about civil penalties for will fraud.
Strategies for Preventing Will Fraud
If you are the testator of a will, consider implementing the following strategies to protect yourself from will fraud:
- Never sign anything before reading it in its entirety
- Get a “gut check” from a trusted source before making any decisions
- Be suspicious of new friends and long-lost family members who show unexpected interest in your estate plans
- Keep your estate planning documents secure
If you are a family member seeking to avoid fraud in the execution, consider trying the following strategies:
- Familiarize yourself with the terms of the testator’s will
- Keep track of the testator’s assets and liabilities (to the best of your abilities)
- Ask for receipts of payments to creditors
- Ask for an explanation of how the executor valued the testator’s assets
- Follow up with beneficiaries
Speak to a California Financial Elder Abuse Attorney About Your Concerns
If you suspect that someone you care about is the victim of will fraud, please contact a California financial elder abuse attorney at the Evans Law Firm, Inc., by using our online contact form or calling 415-441-8669 or toll-free at 1-888-50EVANS (888-503-8267).