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Inheritance and last wills and testaments are great subjects for theater and movies. We have all watched the family members, veiled in black, sitting around the attorney conference table for the reading of the decedent’s last will and testament. Disappointment, rage, and confusion often ensue, and the plot unravels to reveal a multilayered family thriller replete with emotion and suspense.
In reality, that kind of drama is often relegated to the screen as last will readings are not common, and most disappointed individuals react through the courts as opposed to some of the farfetched situations Hollywood and Broadway present. What makes last wills and testaments a prime subject for entertainment is the purpose it plays in connecting the dead with the living. It also creates issues of inclusion versus exclusion, disparate treatment, and it sparks just the right amount of drama for family, friends, and business partners who cannot help but explode. The main character, the decedent, is always missing, which adds to the uncertainty and keeps the plot moving.
In real life — and sometimes in fiction — a last will and testament may be contested by disgruntled or disappointed relatives. The document may be challenged based on the testator’s lack of testamentary capacity (he did not have the mental ability to sign the will), due execution (the document was not drafted or executed correctly), undue influence (someone influenced the testator to sign the particular will by asserting extreme influence unto him), and fraud or mistake. Practitioners will note that proving fraud or mistake as to a last will and testament is very difficult. Instances of fraud occur when a testator did not actually sign a last will and testament, that perhaps a different document was given to him to sign and then replaced with the proffered last will and testament. An instance of fraud may include an individual falsely informing a testator that his children were dead so that the estate may be bequeathed elsewhere. Under a fraud concept, there are also instances when a last will and testament is forged, meaning, the supposed decedent was not the actual testator. He did not sign the proffered last will.
Forgery is an example of the intersection of criminal law and the practice of trusts and estates. Real life has just emulated what is often found on the screen: an Arkansas woman, Donna Herring, was sentenced to 41 months in prison for forging a last will and testament of her daughter’s ex-boyfriend. Charges including wire fraud, conspiracy to commit wire fraud along with money laundering, and aggravated identity theft charges.
The testator, Matthew Jacobs, had an estate that was valued at approximately $1.7 Million. Jacobs was a survivor of a 2012 oil rig explosion and received significant monies as a result of his injuries. He died in 2015 as a result of a car accident. The forgery allegedly occurred five days following Jacobs’ death. The record reveals that Henning used an online program to write and sign the last will. The online component added to the cyber-related federal charges.
After Jacobs’ death, the decedent’s son and brother searched the home for a last will and testament but could not find one. Herring alleged that she found one in the decedent’s gun safe. Hennings’ daughter, brother-in-law, and sister-in-law were also convicted as part of this matter.
The drafting and execution of last wills via software programs at home, without the guidance of attorneys, makes it easier for individuals to attempt forgeries or to assert undue influence onto the testator. When attorneys meet with testators we speak to them, often on multiple occasions. We pick up on issues surrounding their lives, and we are sometimes suspicious of the motives of others. What is learned from the Jacobs case is to inform a competent responsible individual of one’s last will and testament, and other estate planning concerns. This may mean a close family member, friend, or attorney. In this case, Henning and her family did not get away with their crime, however, there are certainly many instances when testators and estates are taken advantage by individuals. With even minimal effort we can assure that this does not happen in our lives.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.