Fraud in the Family – Warning Signs
“Cardiff court sentences three women for forging elderly man’s will”
“Woman jailed for five years for defrauding elderly victim”
“Accountant forged his mother’s will”
As surprising as it may seem, all of these headlines have appeared in the press within just the last few weeks. It forces you to question why people are prepared to risk their reputation and imprisonment for fraud. Are there any signs of wrongdoing and what can be done about it?
Being at the “sharp end” of estate and will disputes it is my firm belief that fraud involving wills, powers of attorney and property is on the increase. Indeed, if recent headlines are anything to go by there is certainly anecdotal evidence to suggest this. Forging a will is a crime. Someone taking advantage of their position to transfer or receive assets which have been placed in trust will very often see them face criminal proceedings.
It is not my intention in this article to address the criminal law issues involved. This would be for a criminal law specialist. I am a civil lawyer who, for the past 14 years, has specialised in the investigation and resolving of disputes relating to the validity of a will or codicil, power of attorney or where assets have been transferred by an elderly or infirm person. The growing “wealth gap” between the generations and the fact that people are living longer and developing conditions such as dementia are, in my view, factors that have contributed to the increase in fraud relating to property and inheritance.
The aim of this short article is to highlight the signs that often precede a dispute and give rise to suspicion, as well as to outline the steps that can be taken if a suspicion arises.
What are the signs?
In my experience family members often record that the elderly or infirm person became more “distant” in their later years. He or she may avoid discussion with members of the family who might be affected by any change in their anticipated inheritance. The person concerned may show signs of isolation from family members, or increased dependency on certain family members, strangers or carers. The elderly or infirm person may also show signs of confusion, anger or despair but the cause may not immediately be apparent.
Other signs are the transfer of assets, uncontrolled or unrestricted access to the person’s bank, building society or savings accounts. It may be the case that the person close to the elderly or infirm person shows signs of unexplained financial improvement. Another sign I have often seen exhibited is a failure by the person trusted with looking after another person’s financial affairs to pay bills, for instance, care home or nursing home fees.
Sometimes there are few signs and the person carrying out a fraud or seeking to gain an advantage may be taking careful and calculated steps.
If suspicions arise then do not avoid making discrete enquiries. You must however be very careful not to make unsubstantiated allegations or assertions as this may result in the elderly or infirm person altering their inheritance provision out of concern for the alleged perpetrator. If you have serious concerns then consider reporting the matter to the police or social services who can determine if the person is a vulnerable adult.
What do you do if you suspect wrongdoing?
In addition to the above options it is often a good idea to take early legal advice. A good lawyer will be able to carefully and constructively advise you and other concerned family members on what can be done to protect the elderly or infirm person and their estate. This might include placing a caveat at the probate registry in order to prevent the issue of a grant of probate or administration. The advice might suggest an application to the Court of Protection in order to seize back control of the vulnerable person’s financial affairs, resolve welfare issues or recover assets or money transferred.
Is it possible to challenge the validity of a will or power of attorney and recover assets or money?
Whether it is possible or actually necessary to challenge the validity of a will or power of attorney depends on the facts of each case. I have assisted a number of clients challenge the validity of a will and assist resolve problems relating to the administration of an estate. I have also helped resolve disputes or claims where a power of attorney has featured. There are positive and often discrete steps that can and ought to be taken in order to avoid an actual challenge or court dispute where a suspicion arises. This very often avoids the problem escalating out of control.
Resolving disputes involving misuse of funds or suspected fraud is not always easy. It may prove very expensive to establish wrongdoing and recover assets. Successfully challenging the validity of a will often involves evidential and cost difficulties, as does recovering assets or money appropriated by the wrongdoer. Assets may have been dissipated by the time the fraud or wrongdoing has been identified and impossible to recover. Prevention and early intervention is nearly always better than the cure.
Applications to the Court of Protection have increased greatly in recent years a further sign of the likely extent of the problem. On balance, trying to turn back the clock is very often impossible – even on the clearest of evidence. One added difficulty is that the person financially abused may have died or is incapable. The person under suspicion of wrongdoing will usually be very focussed and prepared to avoid any personal criticism or a claim for recovery of money and assets.
Tony Pearce is the head of the contentious wills, trust and probate team at GA Solicitors in Plymouth. Tony is a full member of the Association of Contentious Trust and Probate Specialists and an affiliate member of the Society of Trust and Estate Practitioners (STEP).
Tony Pearce, solicitor