How to Claim Will Fraud

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parts

1Filing Your Complaint

2Litigating Your Claim

3Attending the Trial

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Tips and Warnings

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Wills are supposed to ensure that a deceased person's assets are distributed according to their wishes, as expressed while they were alive. However, greed and treachery can sometimes result in a will that can't be trusted – either because of outright fraud, or because someone manipulated and deceived a vulnerable person into drafting or amending a will to be more favorable to the manipulator. When such things happen, interested parties can file a complaint with the probate court and claim will fraud. If successful, the judge will rule the will invalid and through it out of court.

Steps

Part 1

Part 1 of 3:

Filing Your Complaint

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   Consult a probate litigation attorney. Will contests, especially when they involve will fraud, can be especially complex and emotionally fraught. A probate litigation attorney is best suited to make sure your interests – and the interests of the deceased person – are properly handled.

   • Keep in mind that your judgement may be seriously impacted by your emotions as you're dealing with the recent death of a loved one.
   • Will fraud situations can be especially difficult because you're evaluating the possibility that the deceased person was taken advantage of when they were perhaps at their most vulnerable.
   • Additionally, challenging a will can be a very complicated process and there is much at stake – you could potentially lose any inheritance you were due to receive under the will if your claim is unsuccessful.
   • Look for a probate attorney who has experience challenging wills and litigating those challenges in probate court. Ideally, you want an attorney who has successfully challenged other wills under similar circumstances and on similar grounds as you want to challenge the will here.
   • If you have limited experience finding an attorney, start at the website of your state or local bar association. Typically there is a searchable directory of attorneys licensed to practice in your area, and you can find several probate litigation attorneys to interview before you make your final decision.
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   Gather information. Your attorney will need as much information as you have about your suspicions of fraud so he or she can formulate a complaint that brings all the necessary issues before the probate court.

   • At this point, your evidence may be circumstantial at best – and your attorney will understand that. The purpose of the pre-trial process of litigation is to develop your theories and gather evidence to support your allegations.
   • However, the attorney will need enough information to make the correct allegations. For example, suppose your cousin cared for your ailing father at the end of his life, and his will leaves the bulk of his assets to her.
   • Because your cousin wasn't generally close to your family, you believe she manipulated your father in some way to make him change the will and leave most of his assets to her – this would be a charge of undue influence, which is similar to fraud but would require different types of evidence.
   • Another possibility is that your cousin altered the will herself, which would be straightforward fraud. In that case, your attorney would need to focus on physical evidence to prove the document was altered in some way.
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   Draft your complaint. The complaint will identify you, the deceased person, and the will you're contesting, as well as setting forth detailed facts that you believe, if proved, demonstrate that fraud was committed in the drafting or execution of the will.

   • Standing is a key issue in will challenges. To have standing, you typically must be a close family member of the deceased person or one of the major beneficiaries in the will.
   • Since it's safe to say you probably wouldn't be interested in undertaking a will challenge lawsuit alleging fraud if you were a major beneficiary, you must be a close relative of the deceased person – typically a surviving spouse or child.
   • Less closely related family members might have standing if the deceased person doesn't have many living relatives.
   • Typically your complaint must clearly state the reasons you believe you have standing to bring the lawsuit.
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   Take your complaint to the clerk. To initiate a lawsuit, you must file your complaint with the clerk of the court that is probating the will you claim is fraudulent. The clerk will file-stamp your originals and all copies, keeping the originals for the court's records and returning the copies to you.

   • Assuming you've hired an attorney, he or she typically will file the complaint for you, so going to the clerk's office yourself would be little more than an educational exercise. However, you should feel free to accompany your attorney if you're interested in observing the process.
   • You'll have to pay a fee to file your lawsuit – typically around $100. Your attorney will pay this fee and add it to your bill as court costs.
   • If you're filing your complaint on your own and can't afford the fees, ask the clerk for a fee waiver application. If your income and assets fall below the threshold established by state law, you won't be charged any court costs for your case.
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   Have the other parties served. After you've filed your complaint, it must be served on the executor or personal representative of the estate, as well as any major beneficiaries or other parties of interest in the probate proceeding.

   • The probate court clerk typically will have a list of people who must be served. These are people who previously notified the court that they wanted to receive updates and notices of any filings in the probate case.
   • Legal service typically is accomplished by having the documents hand-delivered by a sheriff's deputy, who then completes the proof of service form to file with the court.
   • Mail service is another method that may be available. To do this, you mail the documents to the person you want to serve using certified mail with returned receipt requested. The green card you get back can be used to complete the proof of service document that must be filed with the court.
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Part 2

Part 2 of 3:

Litigating Your Claim

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   Receive responses from the other parties. Generally, any party receiving notice of your claim may file a response to your allegations, including a motion to dismiss your claim. The estate typically must respond, while for other parties a response may be permitted but not required.

   • If a motion to dismiss is filed, the court will have a hearing on that motion before the litigation can proceed.
   • At a motion to dismiss hearing, you don't necessarily litigate your case – you just have to show that there's a significant issue of fact to be decided.
   • In a fraud case, this typically isn't difficult to show and the judge usually will let the case proceed at least through the discovery phase to see if you can find any evidence that supports the allegations made in your complaint.
   • Generally, you should expect any answer you receive to deny most, if not all, of the allegations in your complaint. The other party also may challenge your standing, arguing you don't have any right to bring the lawsuit because you aren't closely related to the deceased person.
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   Conduct written discovery. Litigation typically begins with interrogatories, which are written questions exchanged by the parties that must be answered in writing under oath. Requests for production seek documents related to the allegations in your complaint.

   • Depending on the facts you've alleged as the basis of your fraud claim, interrogatories and requests for production may not be incredibly helpful or produce any information you don't already know.
   • Particularly if your fraud claim is based on undue influence, an important part of requests for production is that it gives you the opportunity to review the deceased person's medical records and find out the names of their doctors.
   • This information can help you determine how vulnerable the person was when they executed the will, which may lead to evidence that could support an undue influence claim.
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   Depose any witnesses. For a will fraud claim, witnesses will be especially important in describing the context under which the will was signed, or the contents of the will as it was originally drafted.

   • In a deposition, a witness or other party to the litigation is interviewed under oath and in the presence of a court reporter.
   • The court reporter records the proceedings and later creates a written transcript of all that was said, which can be used throughout the litigation.
   • One of your most valuable depositions may be the person you believe committed the manipulation of the deceased person or other fraudulent acts such as doctoring the will.
   • That person's answers in the deposition can give you insight into the defenses or excuses they're likely to present at trial, so you and your attorney can work on finding evidence to contradict it or bring doubt to their testimony.
   • You also may want to depose potential expert witnesses, such as doctors or other health professionals who could testify to the deceased person's mental health at the time the will was drafted or executed.
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   Prepare for trial. Assuming no resolution to your claim has been found, you'll have several meetings with your attorney to develop your trial strategy, practice questions with witnesses, and finalize the evidence you'll introduce.

   • If you intend to testify, your attorney will go over the questions they'll ask you on the stand, as well as work with you on responses to possible questions you'll be asked by the other side on cross-examination.
   • The court will have various deadlines for filing final evidence and witness lists, and you may have to subpoena some or all of the witnesses you intend to call to testify in support of your arguments.
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Part 3

Part 3 of 3:

Attending the Trial

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   Appear on your scheduled court date. The probate court will schedule a hearing for your will fraud claim, and if you and your attorney don't appear the judge will likely dismiss your claim. Try to arrive at least a half hour early so you have time to go through security and get to the courtroom in time.[

   • Talk to your attorney or check the court's rules before you go to make sure you aren't bringing anything with you that is prohibited in the courtroom. For example, some courts prohibit cell phones, while others only require that you have them switched off or on silent.
   • You'll also want to review the dress code for the court to make sure your chosen attire is appropriate for the courtroom setting. You certainly don't have to wear a business suit, but generally you should dress as you would for a job interview.
   • Your attorney typically will meet with you before the scheduled time so the two of you can go into the courtroom together.
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   Make your opening statement. A probate court hearing generally proceeds much like any other civil case, and begins with each party in the action making an opening statement that summarizes their arguments and the evidence they will introduce to support it.

   • Assuming you have an attorney, you won't be the one making the opening statement – your attorney will.
   • However, if you're representing yourself, you'll have to make this speech on your own. Outline what you want to say beforehand, and make note cards to take with you so you don't forget any important points.
   • If you're making the opening statement yourself, remember to speak to the judge, not to the other party or anyone else in the courtroom. If you are interrupted, stop speaking and wait until the judge gives you permission to continue.
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   Present your case. Since you initiated the litigation, you typically have the first opportunity to present your case to the judge and prove that the allegations in your complaint are true, more likely than not.

   • When you present your case, speak directly to the judge – not to the other parties in the case. If the judge asks you a question, stop speaking and answer that question before continuing with your point.
   • Calling witnesses to the stand gives you the opportunity to tell your story as well as introduce evidence that supports your claim. Remember you can only ask witnesses questions, and those questions can't be leading or suggestive.
   • Keep in mind that the other party has the right to cross-examine any witnesses you call. If new information is introduced as a result of that cross examination, you typically will have the opportunity to question the witness again – known as a "redirect," which is intended to reinforce the witness's testimony that supports your argument.
   • Any evidence introduced must comply with the court's rules of evidence. These rules are complex and can be difficult to understand on your own. Even if you're planning on representing yourself, you may want to consult an attorney or other legal expert to ensure the evidence you want to introduce is admissible.
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   Listen to the other side. Once you've finished making your argument, other parties will have the opportunity to defend the will or otherwise argue against your theories that there was fraud involved in the creation or execution of the will.

   • Take notes if the other side brings up any information that you have evidence to dispute – you may get the chance to refute their statement later, but you shouldn't interrupt their presentation.
   • Pay particular attention when they are questioning a witness. You'll have the opportunity to cross-examine any witnesses, but your questions generally are confined to the scope of their previous testimony.
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   Receive the judge's decision. After he or she has heard all sides of the issue, the judge will make a decision as to whether the will is valid or fraudulent. In some cases the judge may issue a verbal ruling from the bench at the end of the proceedings, but more typically the order will come later.

   • Particularly in complex cases, the judge often will take the case under advisement – which means that he or she will take some time to look over all the evidence and testimony again before making a decision.
   • If the judge doesn't rule in your favor, you typically have the ability to appeal that decision if you can point to some sort of mistake in the law that was made by the judge, or if there was an error in a procedural ruling during the trial.
   • Before you consider filing an appeal, you definitely should talk to an attorney, even if you chose not to hire one to represent you in the original case.
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Warnings

• Get a copy of the will and read it carefully before you challenge it. Many wills include "no contest" clauses that provide if you challenge the will without a good reason, you are automatically disinherited.
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