The Business/Legal Investigator |
June 15, 2009 |
| In This Issue: |
PROBATE INVESTIGATIONS
by David B. Watts, CLI, CFE, FCI
Welcome!
We meet again! During April we had the good fortune to sponsor a display table at the Southwest Chapter of The Paralegal Association of Florida's monthly meeting in Fort Myers. We found this to be a very professional group and now we not only have a better understanding, but increased respect for those in the paralegal field. These folks "walk the walk!" I would strongly recommend that you encourage your paralegals to join the Southwest Chapter of The Paralegal Association of Florida. It can only be good for the firm! You can reach the organization by calling Carolyn Pierce, Vice President, at (239) 404-1321. They are in a recruitment mode.
This month's E-newsletter is devoted to the investigation of probate matters. While this may seem a little off the beaten path in terms of traditional litigation; the fact is that Florida is where many of the elderly come to spend their end-of-life years , thus creating fertile ground for exploitation. Having worked on this type of case before, I can tell you that an emotional toll, as well as the obvious financial toll, befalls surviving family members when their loved one has been scammed and drained of a lifetime of savings!
As always, I welcome your comments and thank you for your interest and support.
Respectfully,
David B. Watts, CLI, CFE
ALLIED BUSINESS SOLUTIONS, a soley owned
d/b/a of Interprobe Affiliates, Inc., a Florida Corporation
FL License No. A89-00394
PROBATE INVESTIGATIONS
by David B. Watts, CLI, CFE, FCI
Aside from other obvious legal requirements, the primary issue in probate investigations is to ascertain whether or not the testator had the testamentary capacity and competence to make his or her Last Will and Testament (LW&T) at the time it was executed.
Resolving that issue involves inquiry with the witnesses to the execution of the LW&T, medical personnel who came into contact with the deceased, family and friends, and any other personal contacts, such as hairdressers, deliverymen, plumbers, etc. A review of what was going on in the testator's life in the weeks and months leading up to the making of the LW&T is essential. These interviews enable us to show whether or not there was any undue influence being applied by someone close to the testator resulting in the making of a new LW&T. This is especially relevent when the new devisee/legatee in the LW&T is the hired caregiver with exclusive and controlling access over the testator for a long period of time. Undue influence is not the sole purview of non-family members, however. Indeed, it is not uncommon for family members, themselves, to try and alter the testator's wishes by exerting undue influence, thus changing the original intent of the LW&T at the expense of legitimate heirs.
Some of the telltale signs to watch for in terms of testamentary capacity and competence are dramatic changes in the testator's handwriting, the nearness in time between execution of the new will and the death, imposed isolation of the elderly by a controlling "gatekeeper," and no valid reason to exclude loving family members as devisees/legatees in the LW&T.
As in other types of investigations, the legal investigator takes sworn statements along the way to support whatever contentions result from the inquiry.
Of course, there are times when the testator really wants to make last minute changes to his/her LW&T. In those instances, legal counsel would be advised to videotape the testator reading the LW&T aloud to support the fact that the testator was competent to execute the new LW&T or Codicil. Asking a medical professional to witness the new LW&T wouldn't hurt, as well.
In further terms of avoiding probate litigation, family members of the elderly requiring daily care should have complete background checks done on all caregivers. Even then, it is wise to be vigilant and be sure that family members or someone who the family trusts is monitoring the situation. Particular care should be taken with the caregiver who pays the bills and has access to the finances of the testator.
The latest fraud scheme is for the caregiver who has access to the testator's private papers to actually falsify a will without the testator's knowledge. When this is suspected, a document examiner should be engaged to determine whether or not the testator's signature was forged.
As each case is different, it is impossible to include all the possible scenarios in this brief article. Suffice it to say, however, the trained legal investigator has the ability to assist the law firm in probate litigation by providing the facts so you, the attorney, can apply the law and best represent our clients.