Brian D. Lerner, California Trust Lawyer states that a Will that is obtained by fraud can be set aside and revoked. Will contestants frequently lump fraud and undue influence together as grounds for a contest because misrepresentations are often part of the pressure brought to bear on the testator states Brian D. Lerner. However, explains the California Trust Lawyer, fraud, however, is a separate and distinct ground of contest. When fraud alone is alleged, the contestant must show that the testator, even though acting of his or her own free will, was deceived into doing what he or she would not have done without fraudulent representations. It would probably be more successful to allege both fraud and undue influence in a Will Contest states Brian D. Lerner, California Trust Lawyer, as there are two different grounds of recovery.
The California Trust Lawyer asks, what exactly is fraud? The will contestant must prove that the false representations were made with the intent to deceive the testator and for the purpose of affecting his or her testamentary disposition. Brian Lerner, California Trust Lawyer, states that proving intent of a beneficiary with intent to deceive is not an easy matter and will require a significant amount of work and evidence to be shown to the Judge. The fraud need not be perpetrated at the time the will is executed, however, states Brian Lerner. Even when the false representations were made long before the will was executed, the fraud will essentially revoke the will if the testator’s belief in the representations persisted until the time of execution of the will and affected its terms states the California Trust Lawyer.
Brian Lerner asks what happens if fraud is found? If fraud is demonstrated, explains the California Trust Lawyer, only the will provision procured by the fraud is invalidated. The entire will is invalidated, however, explains Brian Lerner, California Trust Lawyer, if the fraud affects the entire testamentary disposition; the invalidated portions of the will are not severable from the rest of the will; or all the beneficiaries participated in the fraud.
Many times, states Brian D. Lerner, California Trust Lawyer, an attorney will not see the fraud right away as the client is unaware of it. Therefore, it would be incumbent on any California Trust Lawyer to be sure that he or she inquires into exactly how the Will was made, who are the beneficiaries, who spoke with the testator, where the facts are coming from and who essentially made the provisions of the Will itself.
Brian D. Lerner, California Trust Lawyer, states that you will have to go to Probate to enter into a Will Contest if there is fraud.