If you suspect a will has been forged, you can challenge it by filing a petition in probate court, proving your legal standing, and presenting evidence, possibly with a handwriting expert's help. This action is crucial for ensuring the estate is distributed according to the true intentions of the deceased.
Suspicion of fraud
Most testators discuss the contents of their wills or trusts with their family members and beneficiaries before their passing or they make promises to their family about how they will divide their estate when the testamentary documents enter probate. However, despite this happening, surprises and confusion often arises after the testator passes. There may be a new will or trust with unusual signatures, or writing and language that seemingly contradicts the intentions of the testator prior to their passing.
If you are one of those family members who believe you may have been entitled to something from the testator and are now suddenly left out, you may have to investigate whether the estate planning document has been tampered with through forgery and your inheritance was stolen.
How do people forge testamentary documents?
Forging testamentary documents is nothing new. It’s been happening throughout history, dating back to when probate courts were established. Forgers are usually relatives, friends, business partners or document drafters for the testator. These are people who are often close to the testator who have knowledge about the documents previously drafted and the intentions of the testator.
Probate litigators will raise questions and will immediately raise issues as to fraud if one of the following things are found:
- Tracing or identical signatures from previous documents are on the will or trust
- If a DIY estate plan from an online or form source was made after formal documents were made by an attorney.
- If there is proof that the incapacitated testator’s hand was moved or aided to sign a will or trust
- If someone other than the testator was shown to have signed the documents on behalf of the testator
- If it is shown that the testator executed or modified their testamentary documents under false pretenses or deceit.
How do I investigate potential forgery for probate fraud litigation?
It is critical that you do not take the investigation of potential probate fraud into your own hands. You should not interrogate the heirs/beneficiaries named or the people you think committed the fraud. It is best to leave the investigation to the court system.
Rather, as part of the initial steps to uncover a potential forgery, you’d do well to turn your attention to the witnesses listed in the will. Their role is pivotal as they can either confirm or dispute the authenticity of the document by attesting to various aspects of its execution, thus eliminating any reasonable doubt and determining the will’s validity.
Remember, witnesses to a will need to be aware that they are witnessing the signing of the testator’s will, although they don’t need to know the content of the document.
Besides scrutinizing the document, it’s equally important to monitor the overall circumstances surrounding the deceased. Maintain detailed records of:
- conversations
- unusual behavior
- comments that hint at coercion or undue influence
- any strange changes in the decedent’s behavior that might suggest manipulation
These records will help in identifying any potential issues or concerns.
Standing and Grounds for Probate Fraud
You must have standing prior to contesting the estate plan on the basis that it was forgery. You must show that the illegitimate estate plan directly or indirectly harmed your own inheritance. Merely being upset with the testamentary documents is not enough to contest the will or trust’s legitimacy.
Secure a Copy of the Alleged Forged Will
The cornerstone of your investigation would be a certified copy of the alleged forged will. Once the will is filed with the probate court, it becomes a public record, and you can access it. The necessary file number to request the will can often be located by providing the deceased’s name and date of death, which may be available via phone, online systems, or in person at the courthouse.
You can obtain a certified copy of the will from the probate court clerk, usually for a fee, and some courthouses may even send a copy by fax or mail. In cases where the will hasn’t been probated, named beneficiaries or guardians of minor beneficiaries can still be granted access, potentially requiring contact with the executor or legal action to compel the will’s filing.
Red Flags Found within Forged Documents
After you have established grounds and standing to contest the will or trust, the investigation will next look at various red flags which might suggest the documents may be a forgery. Some examples include:
- Self-Made Will Language. Wills or estates that are created with a DIY website or form document have a strong potential for fraud, specifically through the copy and pasting of signatures into the document.
- Missing Pages. If pages of a will or trust are clearly missing (language changes between documents, it is clear something is missing), questions often arise as to fraud.
- Different or modified pages/text. If a majority of the document is printed on one type of paper and select pages are in a clearly different type of paper or a new piece of paper, suspicion arises. The same goes for unusual staple marks. If the document has clearly been stapled multiple times. Finally, if there are multiple strikeouts, use of whiteout, use of multiple types of ink or other corrections made to the document, suspicion may rise.
- Missing Legal Language. Estate documents can be valid without an attorney having drafted them. However, if legal language and formalities are clearly missing from a document, suspicion does arise. This is especially important if an attorney did draft the documents or if an attorney was consulted.
Red flags in the document’s signature
An obvious red flag with a will or estate are issues with the document’s signature. Substituted signatures, shaky or heavy signatures, irregular pen marks, missing fluidity or clear differences in signatures all raise suspicion.
Proving signatures are false typically require expert analysis. These handwriting experts will compare the signature and handwriting from the will or estate document with other known handwriting from the testator. They will make a determination as to whether the signature or handwriting is from the testator. These determinations will then be provided to the court either through an expert report or testimony from the expert.
Accomplices in a Trust Forgery
A counterfeit will or trust needs two witness attestations before the person committing fraud can submit the documents to probate. This legal obligation often becomes the biggest hurdle for these people trying to commit fraud.
In the probate fraud case, it will be important to locate these witnesses listed on the document you believe is counterfeit and question them as to whether they oversaw the execution. If evidence shows the witnesses are fraudulent, the court will set aside the will or trust in summary judgment. Additionally, if the witnesses are correct, they can attest as to various aspects of the will or estate, specifically the document type, how it was signed, ink used in the signature, pages attached to the document, etc.
Filing a Legal Challenge in Probate Court
Armed with initial evidence and expert advice, the next step is to file a legal challenge in the probate court. If you wish to contest a will during probate, you are required to file a petition in the probate court challenging the will.
The process of contesting a will involves the following steps:
- File a petition with the state probate court to formally begin the process.
- Ensure that you have legal standing, such as being a beneficiary of the contested will, a prior will, or a potential inheritor under state law.
- Gather supportive evidence of the will’s invalidity to present to the probate court.
A handwriting expert can be called upon to provide testimony that may confirm or disprove the authenticity of the contested will’s signature.
Consequences for the Person Committing Fraud
The aftermath of reporting a forged will is not limited to the restoration of the rightful inheritance. There are serious consequences for the person committing fraud as well. In some states like New York, forgery charges range from a Class “A” Misdemeanor to a Class “C” Non-Violent Felony depending on the degree of the forgery, with severe charges dealing with government-issued documents, including creating a new will.
Forgery of a will can lead to both criminal charges and civil penalties, potentially including imprisonment and restitution for damages caused. In cases where the forged will has been utilized to misappropriate assets worth $950 or more, grand theft charges may apply, which can incur up to nine years in state prison.
Restoring the Family Member's True Wishes
The ultimate goal of contesting a forged will is to restore the family member’s true wishes. When a forged will is invalidated, the deceased’s estate is typically distributed in accordance with their last known valid will, which represents their loved one’s will.
If there is no prior valid will available, the distribution of the decedent’s estate follows the state’s intestacy laws, favoring the transfer of assets to the closest living family members. This ensures that the deceased’s true wishes and intentions are honored, bringing closure to the family and justice to the wronged beneficiaries
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