by Brian Mahany
Admittedly this is a dark post to be writing on Christmas day. While tens of millions of people are celebrating this joyous and most blessed holiday, other families are struggling with bitter feelings and anger. The death of loved one is difficult under any circumstances. Add fraud, forgeries and undue influence and it can permanently tear families apart.
Inheritance fraud takes many faces. Sometimes a care giver will take advantage of an elderly patient and have them sign a document leaving all their valuables to the care giver instead of family members. Other times a family member upset at what they are to receive under a loved one’s will or trust will secretly destroy the document they deem to be unfair. State law takes over and dictates who receives the assets if no will can be found. And at other times, dishonest family members will simply forge a signature on a new will or substitute pages of an existing will.
It’s hard to believe that these things happen but they do. Everyday.
One of my favorite quotes about greed comes from American author Lemony Snicket. He says, “Money is like a child—rarely unaccompanied. When it disappears, look to those who were supposed to be keeping an eye on it while you were at the grocery store.” In the context of probate fraud, the culprits are often family members who feel they deserve more (or that their siblings deserve less). Sometimes they are home health aides.
When the stakes are high, no one seems to be immune to the temptation. Lawyers and bankers have even been dragged into these sordid family affairs.
I couldn’t write this post on Christmas without offering a message of hope, however. There are ways to successfully challenge an unfair will or document thought to be the product of undue influence.
For a will or trust to be enforceable, the person making it must have had sufficient mental capacity at the time it was signed. While death bed wills are not uncommon, one signed after the person making it is already under advanced stages of dementia or under the influence of heavy narcotics is immediately suspect. This is particularly true if it makes sudden changes to beneficiaries.
Undue influence is another common problem. Actor Mickey Rooney made national news in 2011 when he testified before Congress about elder abuse. Rooney, then 90, obtained a restraining order against his stepson after telling a court he was held a virtual prisoner in his own home. He claimed his stepson withheld medication and forced him to sign financial documents. While these allegations go well beyond the traditional undue influence claims, they are a reminder of how greed can wreck families.
Undue influence can manifest itself as withheld medication (as Rooney alleged) or food. It can also come from forced isolation when the person is denied social contacts and kept from other family members. Another variant of undue influence is a family member telling repeated lies about another in the hopes that the other will be disinherited.
Unless the person signing the will was clearly suffering from dementia or the document is an obvious forgery, proving probate fraud and winning a will contest can be difficult. Often it pits one side of the family against the other. In deciding whether there is really a case or not, consider the following factors (and consult with a good fraud lawyer):
* was the will signed shortly before death?
* was the person signing under the influence of strong medications?
* is there objective evidence of undue influence?
* were changes made to beneficiaries shortly before death?
* was the person making the will diagnosed with Alzheimer’s or dementia?
* did the person making the will have memory problems or exhibit erratic behavior?
* is the recipient of the estate an expected beneficiary (such as a child) or an outsider?
* was there a recent friendship with the new beneficiary?
* are there multiple and inconsistent versions of the will?
* was the person making the will isolated from family?
* do you believe someone was intentionally causing the isolation?
* did the influencer insist on being with the person making the will when others were present?
* were there significant transfers of assets to the influencer prior to death?
* were there signs of elder abuse (including physical abuse)?
The time to file a will contest is quite limited in most states. Once a will has been approved by a court, challenging becomes much more difficult. As a practical matter, it is also usually much more difficult to get property back once distributed.
If you believe that someone has improperly denied you the fair share of a will or estate or if you feel a loved one was unduly influenced to give away his or her assets to someone else, contact a lawyer as soon as possible.
The fraud lawyers at Mahany & Ertl specialize in all types of fraud and can help you get what is rightfully yours and what your loved one wanted. For more information, contact attorney Brian Mahany at or by telephone at (414) 704-6731 (direct). All inquiries kept in strict confidence.
Mahany & Ertl – America’s Fraud Lawyers. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Portland, Maine; Minneapolis, Minnesota and coming soon, San Francisco, California. Services available in many jurisdictions.