Fraud is an extreme type of mistake resulting from misconduct of a more egregious nature than mere negligence. Fraud is mistake induced by the intentional misrepresentation or misconduct of a person other than the testator. Without deceit there cannot be fraud; fraud is active and tortious. It consists of either:
The false statement, concealment, or unprivileged nondisclosure must have induced the other person to have acted in his/her detriment.
In many cases, allegations of fraud and undue influence are commingled. The grounds, however, are different. Fraud is not the overcoming of the testator’s free will as in the case of undue influence. In fraud, the decedent’s free agency remains but deceit misleads the testator into doing an act that he/she otherwise would not have done.
The fraudulent act can be either:
Washington case example: Estate of Ganjian, 55 Wn.2d 360 (1959) — Testator’s son had his attorney prepare a Will for the son’s mother (whose native language was Armenian), giving the son the majority of her estate, despite a record that showed the Testator to have a history of wanting to divide her property equally among her children and grandchildren. He and the attorney took the Will to the hospital where his mother, over 70 years old, had been admitted and was on heavy sedation and at least partially comatose. The son removed everyone from the room but his mother, his attorney who was named in the Will as attorney for the estate, and the minister of a church that received $1,000 in the Will. She couldn’t read the Will, so the son and his attorney paraphrased parts of it for her, leaving out critical portions. She was too weak to sign her name, so she made an “X” on the Will. Held: The facts are of such a suspicious nature as to shift the burden of proof to the son, who was unable to prove the Will to be what his mother intended. See also Estate of Jaaska, 27 Wn.2d 433 (1947).
Washington case examples:
The Court opined:
The trial Court had found that Christian falsely represented to Estelle that “he loved her and was the one person who would care for her because her family only want to put her in a convalescent home and get their share of her estate.” The Supreme Court, however, was unwilling to conclude, without more, that Christian fraudulently represented that he loved Estelle — for example, absent his being overheard admitting that he lied about his feelings towards her — and concluded that without “evidence of a compelling nature,” “fraud cannot rest on allegedly false representations of love.” The Supreme Court did conclude, however, that Christian had “isolated Estelle from her family and friends and thereafter falsely represented to Esttelle that her family wanted to put her in a home … to get their hands on her estate.” And that he made these representations to induce her reliance on him, and that as a result of these representations, she signed a Will that damaged her by radically altering plans for the distribution of her estate from her plans made before she met him. The Supreme Court upheld the invalidation of both the marriage and the Will due to fraudulent representation (as well as undue influence).
Proof of fraud requires what is known as “scienter” — the fraudulent misrepresentation must be made knowingly. The deceiver must know that the representation does not accord with the true facts.
Proof of due execution of a will raises the presumption of lack of fraud in its execution or procurement. The burden then shifts to the contestant to prove all the elements of fraud by clear and convincing evidence.