Linda Cummins, of Goldsmith Williams, explains how to spot misdeeds in probate and best practice for dealing with them.

While the majority of people are naturally upset when a relative or friend passes away, this is not always the case.

Some individuals see it as an opportunity to take advantage of the rightful beneficiaries, as well as the person – perhaps when they were close to death, ­­or soon after death – to commit fraud and help themselves to the assets, personal possessions and cash. To most decent people, this is unconscionable behaviour, but unfortunately, it does go on.

According to a recent report by the Society of Trust and Estate Practitioners (STEP), the cost of probate fraud is predicted to be in the region of £150 million, some £100 million in excess of what was previously estimated. Indeed, one in two professionals consulted said that they have come across fraud in probate cases that they have dealt with.

Anyone can commit fraud, from organised criminals to the people who are closest to the deceased and are in the greatest position of trust, such as family, friends, neighbours, carers and professionals. Executors, particularly with the control that they have, could also manipulate figures and help themselves to the estate. Indeed, there was a 30 per cent increase in the breach of fiduciary claims lodged at the chancery division between 2012 and 2013, according to a 2014 ombudsman report.

The importance of being on your guard when it comes to fraud can’t be understated, particularly as the relatives involved may be trying to cope with their loss so do not notice something untoward happening since the death.

Warning signs of possible probate fraud

Factors to look out for:

Changes to the will

• If the deceased changed their will soon before they died, naming new beneficiaries, or including people that the family aren’t familiar with.
• Did the deceased seek legal advice in making the new will, or create a homemade or online will?
• Could the deceased have been unduly influenced or coerced into changing their will, or have no knowledge that their will has been changed?
• Could the will have been forged?

Changes in the deceased’s financial behaviour before or after death

• Any unusual or unaccountable cash withdrawals or transfers made from the deceased’s bank accounts prior to, or soon after, death.
• Withdrawals made when the deceased was physically or mentally unable to do so, for example, because they were in hospital.
• Another person being added to their bank account prior to death.
• An ‘unexpected’ attorney appointed prior to death.
• Have the deceased’s bills been left unpaid for many months before death?
• Are there bogus debts?

Post-death, organised criminals and scam emails

• Have the beneficiaries been contacted by people purporting to be the solicitor or executor, or have there been claims by email for the payment of tax or funds to third parties to enable the legacies to be released? 
• Have personal items been removed from the home of the deceased, or are they unaccounted for? 

The Law Society, the British Bankers Association and STEP have agreed the protocol to assist an executor or personal representative with regards to the banks’ requirements, to ensure that the deceased’s assets are dealt with as securely as possible.

What to do if probate fraud is suspected

• Examine the previous wills and notes made, to gauge any changes and see if further investigations are warranted.
• Check the signature to the will compared with previous wills signed by the deceased, as well as the location in which it was signed.
• Check the witnesses to any new wills – would they have been known to the deceased or to the ‘new’ beneficiary?
• You can also obtain medical records and make enquiries of the relevant authorities and banks.
• If necessary, report the matter to the police.

Solicitors carry out much in the way of due diligence before parting with estate funds to ensure the distributions from the estate end up in the right hands – obtaining proof of original ID and making Smart ID checks; bankruptcy searches against all beneficiaries; using the Consumer Bank Account Checker by Lawyer Checker for checks.

It is good practice to offer storage facilities for clients’ wills and registration of the wills with a national wills register, such as Certainty, the National Will Register.

While genuine human mistakes and oversights can occur, if you get the feeling that something isn’t right, it usually isn’t, and you should trust and rely on your gut feeling and investigate. Though this may cause a delay and result in disgruntled beneficiaries, is it not better to deal with a justifiable delay in administering and distributing an estate than to suffer a fraud?

About the author

Linda Cummins is head of wills and probate at Goldsmith Williams and a member of STEP. 

Publication date: 30 March 2017