Fiction About Wills and How to Spot Fraudulent Wills.
The United States common law and legal customs originated in the United Kingdom, well before American independence. Spotting a forged Will hails back from a long time ago. But how do you begin? In many movies dealing with inheritance in the U.K., there is a scene, “Reading the Will”. An attorney (solicitor in the U.K.) gathers the family and reads the terms of the Will out loud. It’s a myth because there is no such requirement under the law in the U.K. or even a standard custom.
Valid Will Probate Process.
In reality, no one assembles the family and reads the Will, especially in the United States. There are no requirements for that. The original Will is filed for probate, and the requisite written notices are mailed to beneficiaries named under the Will. The individuals who would benefit if the Will did not exist (intestate heirs) should also receive notices. After that, you are on your own to get a copy of the Will, review the Will, decipher its sometimes-confusing bequests, and discern whether the Will is valid and genuine. If the Will is already probated, it is presumed valid. It is an uphill battle to spot a forged Will and prove the Will is invalid. You must do so using a heightened burden of proof: clear and convincing evidence. You will not be able to do that without the help of an attorney skilled in Will Disputes and Contests.
How Do You Know Whether It Is a Forged Will or an Invalid One? Here are Some Telling Details That May Help You Spot a Forged Will:
Forged Signature on the Will.
- You do not recognize the signature of your loved one (the testator) on the Will. If someone forged a signature on the Will, it is a serious crime, usually a felony. It is not enough to spot it: to prove that it is a forged Will, you frequently have to use the services of a handwriting expert. The expert may examine the testator’s known signatures on Deeds, checks, and other legal documents that the testator definitely signed, and compare those genuine signatures to the signature on the Will. Having a different-looking signature on the Will is not always nefarious because, for example, a person may have a stroke, which affects their handwriting, but may still be competent enough to sign a Will.
Drastic Departures from Prior Wills.
- The Will cardinally changes the bequests from the prior Will. Sometimes the changes are in favor of other family members, but sometimes they are in favor of someone who is not even family! Uneven distribution without a good reason or unexpected beneficiaries may indicate something. This is especially true if there was a prior Will from which the new Will takes a drastic departure. In such cases, you may need to prove lack of testamentary capacity, duress, fraud, fraud in the inducement, or undue influence. Undue influence in Pennsylvania is established when a person who had a confidential relationship with the testator receives a substantial benefit under the Will, and the testator had a weakened mental intellect when the Will was executed.
Signs of Tampering with the Will.
- The testator did not initial the Will on every page. Although not by itself indicative of a forgery, it is more difficult to tamper with a Will where the testator initialed each page. If the Will has several pages without the testator’s initials, and you spot that the paper, fonts and ink do not match, that would certainly be suspicious and indicative of a partially or fully forged Will. So are missing pages, handwritten alterations or erasures in the Will. Testators should not try to change or alter their Wills like that on their own.
The Will is Unstapled.
- The original Will is unstapled. That’s a more serious problem than not having the Will initialed. Having the original Will unstapled actually creates a presumption of tampering in Pennsylvania and New York. It is possible to overcome that presumption in some cases, but that depends on the circumstances. Additional evidence, affidavits, or testimony are always necessary to do that. Hence, do not ever unstaple the original Will, even to make copies. You can always get a copy from the Register of Wills in Pennsylvania or the Surrogate’s Court in New York or New Jersey.
How to Know When a Will is Invalid:
- The signature on the Will is a mark or an “X”. In such a case, know that it is not necessarily a forged or invalid Will. It does happen that a person cannot physically sign their name and must sign with a mark or an “X”. However, if that is the case, or if someone physically helps the testator sign the Will or signs the Will at their direction, strict signing formalities must be followed to make the Will valid. 20 Pa.C.S. § 2502.
- The Will is not signed properly. The testator must strictly follow statutory formalities when signing the Will. There are additional requirements to make the original Will “self-proving”. A self-proving Will is an instrument that is admissible to probate without any additional evidence or testimony. For instance, if the testator and two witnesses sign the Will, it is valid, provided the witnesses witnessed the testator sign and signed the Will at testator’s request. However, to actually probate the Will, you will need the testimony or affidavits of the two witnesses. Now imagine it has been 10, 20, or 30 years since the Will signing. The witnesses likely moved, and some of them may have died already.
- An elderly, sick individual, sometimes in a hospital or nursing home signs a Will. The signing is possibly shortly before the person’s death. Perhaps the Will is the first Will for that person, or it drastically departs from a prior Will. Although the Will is not automatically invalid, you may need to investigate the circumstances of the preparation and signing of the Will to rule out foul play.
Additional Problems that Arise.
There is no original Will. If the original Will was in testator’s possession but is not found for probate, the presumption of revocation by destruction arises. The presumption, in Pennsylvania, New York and New Jersey, is that the testator destroyed the original Will with the intent to revoke it. That is a fairly serious setback. However, it is sometimes possible to get a copy of the Will admitted to probate. It is always more complicated and requires additional evidence, affidavits, and/or testimony.
Formalities and Proper Execution are the Key Factors to Know to Avoid Invalid Wills.
When the Will is drafted, and the signing of it is supervised, by an attorney, it creates a presumption of regularity. In other words, the presumption is that the Will is valid and properly executed (signed). When the testator downloads a Will template from the Internet or a non-attorney (paralegal for example) generates the Will, no such presumption arises. In fact, only a licensed attorney can draft legal documents for others. Anything else is unauthorized practice of law, which is a crime in most jurisdictions. This includes Pennsylvania, where practicing law without a license is a misdemeanor. 42 Pa.C.S. § 2524.
In summary, creating and signing a valid Will is not a terribly difficult process, but it is a process nonetheless. You must strictly follow the formalities to create a valid Will. For example, if the testator did not declare the Will to be his or her Last Will and Testament (a statutory requirement in New York), will that invalidate the Will? Yes it will. New York Estates, Powers & Trusts Law (EPTL) §3-2.1. Not so in Pennsylvania, where not declaring the instrument to be the Will during execution will generally not invalidate the Will, provided the testator follows the writing and signature formalities.
We represent clients in Will contests and inheritance disputes in Bucks County and Philadelphia, PA. Contact Estate Litigation attorney Leo Mikityanskiy at 215-357-1400 to make an appointment at our Southampton office.
