A Guide to Probate Fraud Litigation

Probate litigation often depends on the contents of your loved one’s Will or trust. But what happens when the document itself is the problem? Probate fraud and forgery can keep you from receiving the inheritance your loved one intended. Find out what to do if the Florida probate court is using an invalid Will or trust document.

What is Probate Fraud?

Probate fraud litigation is a lawsuit filed by someone with an interest in a Will or trust, often a beneficiary or a natural heir. It asserts that the document in question is a forgery, or was executed based on deception. This can result in probate fraud litigation filed in civil or probate court for tortious interference with an expected inheritance.

Common Types of Probate Fraud

The term “fraud” covers a wide range of deceptive and manipulative behaviors. Because of this, probate fraud litigation can take many forms. However, certain types of fraud and forgery in probate litigation are more common than others.

Forged Estate Documents

Sometimes, the person opening a probate estate will submit a Will or trust that the deceased person (the testator) never signed. These counterfeit estate planning documents can create substantial problems for the Florida probate court because they are only filed after the testator has died and is therefore not present to contest their authenticity. Instead, it is up to the beneficiaries and heirs of the testator to demonstrate that the document is false, or does not reflect the testator’s actual wishes. Forged documents can be hard to spot, even by people who know the deceased well. Proving a forgery may depend on:

• Handwriting and signature analysis
• Missing or replaced pages
• Differences in paper quality or font
• Signs the document was taken apart and put back together
• Unusual corrections or modifications (not included in a codicil)
• Missing legal formalities or “do-it-yourself” templates

Undue Influence

Undue influence is one of the most common reasons to challenge a Will, trust, or other estate planning document. Unlike in forgery cases, this form of probate litigation says that the testator actually signed the estate planning documents filed with the Florida probate court. But they did so because of “active procurement” of the document by a caregiver, agent, beneficiary, or attorney with confidential access to the testator. Undue influence claims are complex and highly emotional. Essentially, the fraudulent actor convinced the testator to sign a new estate planning document giving the actor something beneficial or valuable and took steps to make sure it happened.

Estate Fraud

Even when there isn’t a sufficient confidential relationship to establish undue influence, you can sometimes still show fraud or forgery occurred. If someone led your loved one to believe something that was not true, and that mistaken belief caused the testator to revise their estate plan, that misrepresentation or false statement could be the basis of probate fraud litigation. This kind of estate fraud may cause a testator to write someone out of their Will, or to sign a document they don’t realize is part of an estate plan. Proving this kind of fraud can cause the resulting estate planning document to be thrown out, just like in cases of undue influence.

Executor or Guardianship Fraud and Breaching a Fiduciary Duty

If a person manipulates their way into a position of authority over your loved one’s estate, it may be a case of executor fraud or guardianship fraud. In these cases, the person seeks to enter into a confidential, fiduciary relationship with the testator’s estate, with access to the person’s assets and authority to use them.

When this authority is granted based on fraud or undue influence, it is often because the person named has a plan to use the person’s assets for their own benefit. This is a breach of the executor or guardian’s fiduciary duty and can result in probate fraud litigation. Beneficiaries and interested parties (including family members of an incapacitated person) can sue for a breach of fiduciary duties. In response, the Florida probate court judge can remove the fiduciary from their position, replace them with someone new, and order the trustee or personal representative to pay back the harm caused by their actions.

How to Prove Probate Fraud

A part of any fraud litigation typically involves establishing the following:

• Misrepresentation: The fraudulent actor made a false statement (verbal or written) to the testator, which that person relied on in writing their estate planning document. It is enough that the statement is false and that the fraudulent actor should have known it was false, even if they personally believed it to be true or didn’t know whether it was true or false.
• Intent to Deceive: The fraudulent actor had to intend that the testator make changes to their estate planning documents based on the statement.
• Benefit to the Actor or Harm to the Estate: The fraudulent actor must have gained something by their actions, or caused harm to the other beneficiaries’ claims. Often this involves removing assets from the testator’s estate or preventing other beneficiaries from receiving their intended inheritances.

What Happens to a Will After Probate Fraud is Proven?

If the Florida probate court believes fraud or undue influence occurred, it can throw out the resulting document. In its place, beneficiaries or heirs can provide an earlier Will or estate planning document, or can ask the court to apply the state’s intestate succession laws to make sure family members each get their fair share of the estate.

What to Do if You Uncover Probate Fraud or Forgery

If you identify a red flag or even have a gut feeling that fraud is occurring, you should contact an experienced probate litigation attorney right away. Remember that the estate’s attorney represents the estate, not the beneficiaries, so you will need independent legal representation of your own. At Harrison Estate Law, P.A., our experienced estate and probate team can help you investigate, file, and prove a probate fraud lawsuit or Will challenge. We will help you be sure your family members are provided for after a loved one’s death. Contact us here or call 352-559-9828 to get help today.