It is a safe assumption that most wills filed with probate courts are authentic. This is the conclusion of law professor Mark Glover of the University of Wyoming College of Law in an article in the University of Michigan Journal of Law Reform.
After extensive research, Glover believes that most wills probated are likely authentic because:
- Interested parties rarely contest wills in court.
- The law requires people to follow formal rules when they write and sign wills, and this formality helps promote authenticity.
- Traditional kinds of fraud are rarely present in probated wills today.
- Many wills that fall short of compliance with required formalities are the result of mistake or ignorance, rather than bad intentions.
Of course, fraudulent wills are still possible, and people do file will contests on this basis. Fraud could come up in a variety of ways. Someone could forge a signature. Someone could fraudulently alter a bequest in a will that would direct inherited property to someone other than the signer’s (testator’s) choice without the testator’s knowledge. Someone could tell the testator a falsehood that causes them to change the terms of their will.
Take the strange Arkansas case recently covered in Above the Law. An explosion injured an oil rig worker, who received a large monetary award as a result. He died a couple of years later in a motor vehicle accident. A few days later, the mother of his ex-girlfriend allegedly went online for a will form, which she filled out and signed, pretending to be him. She then claimed to have found the will in his gun case. Instead of an inheritance, the forger ended up with a prison sentence.
State law governs will contests, and Colorado’s allows interested parties to contest wills in court based on fraud (including forgery) as well as on other grounds like incapacity, undue influence, duress, lack of testamentary intent (the person did not mean to make a will), duress, revocation or mistake.
Should a will contest be successful, the court could set the will aside. At that point, there could be a previous will that could be valid. If there is no authentic will, the estate could pass through intestate succession in which state law determines how the person’s property will be distributed among potential beneficiaries.
A lawyer can help an interested person who suspects fraud to launch an investigation into the matter to determine next steps and potential legal remedies. On the other hand, an attorney is important for a personal representative or interested person who faces a will contest against a will they are probating.