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Contesting a will on the grounds of fraud

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Posted by Martin Oliver on 07 June 2013

Martin Oliver Partner

Challenging a will on the grounds of fraud

There are several grounds for contesting a will; fraud is one of them. This article highlights the grounds for challenging a will on the grounds of fraud. 

If the true intentions of the person making a will (known as a testator) are not contained within their will, it may be possible to contest a will on the grounds of fraud. Fraud is defined in criminal law as being “an intentional deception made for personal gain or to damage another individual”.

Fraud is rarely pleaded when contesting a will for a number of reasons. Firstly, by its very nature, fraud often takes place behind closed doors. Secondly, one of the witnesses to the fraud (i.e. the deceased) will no longer be able to give evidence. Thirdly, when pursuing a civil action, the matter is usually decided on the balance of probabilities (i.e. if you prove your case 50.1% you will succeed). In actions involving fraud, there is a higher degree of probability required than usual. 

Fraud has sometimes been regarded as being similar to undue influence. The only difference being undue influence involves a degree of coercion, while fraud does not. 

Examples of fraud

While fraud cases are rare, there are a few examples where a party has been successful when contesting a will. Such cases include where beneficiaries have made false representations to the testator about the character of a potential beneficiary and induced the testator to leave more monies to the perpetrator of the false representation. Other examples of fraud include where individuals have impersonated the “testator” to execute a will. Such cases are sometimes pleaded as forgery, which is dealt with in more detail in Part Six of our series of articles. 

Even if fraud has not been committed in the preparation of a will, there are instances where family members who have not been named in a will, have fraudulently destroyed the deceased’s will, intending to gain monies/assets under the Intestacy Rules. 

Alternatives to pleading fraud when contesting a will

Even though there may be

1. suspicious circumstances; 

2.a suspicion of dishonesty; and 

3.a person benefiting under a will who was instrumental in its preparation, a lawyer may advise their client not to pursue a claim for fraud when contesting a will.

The reason being, the higher the degree of proof required than usual in a civil case. An alternative is to raise an allegation of “knowledge and approval”. This puts the burden of proof upon the person alleging the will is valid to dispel the suspicious circumstances. If this cannot be done, the will will be invalid. Contesting a will based on “knowledge and approval” is dealt with in more detail in part 4 in this series of articles.

Implications

Where a will is successfully disputed, and the court confirms the will is invalid, if there is not an earlier valid will, then the testator’s estate will be distributed according to the Intestacy Rules.

Other articles in the series: 

About the author

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

Martin Oliver

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

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