Will Fraud and Disputed Probate
We are regularly instructed to dispute a will and the first hurdle of course is to identify the grounds upon which a will is to be contested. Amongst other things, fraud is an accepted ground for contesting a will although generally, it is rare we would advise a client to pursue a fraud action as there are in fact easier remedies available.
So, what firstly is fraud? A legal definition of fraud is:-
Fraud is a rarely used ground for contesting a will because ultimately, it is hard to prove. There is another problem in as much as the person making the will is now deceased and cannot give evidence. This makes proving fraud difficult and the burden of proof for fraud (which is a criminal offence) is higher than the burden of proof for a civil matter (which is on the balance of probabilities).
Contesting a will on grounds of fraud are therefore not impossible but are certainly challenging. So what are the alternatives?
Well, the alternative is to raise an allegation of ‘knowledge and approval’. This then places the burden of proof onto the person who seeks to rely upon the will being valid (usually the main beneficiary to the will). That person will have to address the allegations that there may be suspicious circumstances, there may be a suspicion of dishonesty and that the person benefitting was instrumental in the will’s preparation.
The person relying on the will would have to dispel the suspicious circumstances and if they cannot convince a court on the balance of probabilities, the will would be held as invalid. Under these circumstances, the Estate would be distributed in accordance with the previous will (if there is one) and if not, under the laws of Intestacy.
Increasingly, we are experiencing clients who instruct us initially that a will is fraudulent. Fraud generally is on the increase and it is a sad fact that as people become elderly, there are opportunistic fraudsters who are only too willing to befriend an elderly person in order to ensure they become a beneficiary when the person dies. There is little in place in the UK in respect of wills. There is no central register of wills and the drafting of wills is not a regulated activity. It is therefore, open to abuse and that abuse does not become apparent until someone dies.
