THE WILL IS A FORGERY ! do you have the guts to prove it ?

The following is a work of fiction from a probate litigation book which I am writing tentatively titled:  Pankauski’s Probate Wars: the $59 trillion inheritance fight.

THE WILL IS A FORGERY ! do you have the guts to prove it ?

How could dad or ma disinherit you? That will must be a forgery ! If you are certain that the will which dis-inherited you, and left everything to — fill-in-the-blank (girlfriend, boyfriend, lover, neighbor, tennis pro, pole dancer, caregiver, chum, poker pal)— is a forgery…….. are you ready to take action?

No one likes to be disinherited or cut out of a will or an estate. Adding insult to injury, people who are cut out of an inheritance not only dislike the lack of money coming their way, but often direct their anger to the ones who do inherit. Thinking of leaving money to a girlfriend orboyfriend? That’s your right. After all, it’s your money. Just realize, it will upset your kids or family members; perhaps to the point that they sue your lover. So, how much is that girlfriend, or boyfriend, or second or third spouse, going to cost your kids, or your estate? In financial, and non-financial, or personal, costs? Maybe you don’t care. After all, you’ll be dead by then.

Beneficiaries, sons and daughters, or family members who are disinherited, carefully read mom or dad’s will when they receive a copy of it. Page for page. Line for line. Word for word. Inquiring heirs want to know!

It can be a frustrating process for some. Imagine, you are a son or daughter of a mom or dad who has amassed a few bucks over their lifetime. And you get nothing. Zilch. Nada. Zero. No life insurance proceeds, no retirement plan beneficiary, no IRA, no distribution from an executor.

The truth is that most family members, sons and daughters, develop a false sense of entitlement to an inheritance. You somehow believe, or want, or desire, to get a piece of mom or dad’s estate. You view their money as “your” money. “Family” money. You view your DNA as somehow creating a financial link and entitlement to money and property when your parents die– an invitation:

“And what would you like for your inheritance? May I offer you some real estate? Or perhaps you’d like a brokerage account with lots of stocks and bonds? I have some very good cash this evening, if you’re so inclined.”

The truth is, however, that DNA does not provide a link to an inheritance, providing that your mom or dad disposes of their property in a proper manner during their life or at death. Said another way: just because you are an heir, issue, descendant, next of kin, son or daughter, doesn’t mean you always inherit-unless your folks die without a will and they didn’t already dispose of their money. And even then, if they die without a will, intestacy laws, and probate laws of the various states, may give most, or all, of their estate to the last spouse.

And intestacy laws are not something to forget. Why? Because even though it seems “everyone” has a will, many people end up dying without a will. Why? Some just never get around to signing one. Even though they know they should have one. That is to say, some people, in fact, just don’t have a will. They put off dealing with mortality and probate lawyers and just never get around to having a will prepared. Others who did have a will lose the original will, or family members simply can’t find a will after death. Some penny-pinchers try to use a “form” will or a “do-it-yourself will” from an online supplier or office supply store, and end up not signing it properly. (Yes, there is a formality to signing a will and if you don’t “do it right”, the signed will can still be invalid).

So, if your parents died without a will, your DNA may indeed be the linchpin to an inheritance. That’s because most states’ intestacy laws which provide that when a person dies without a will, his or her property descends or “goes to” his or her heirs at law-one’s descendants, one’sissue. What does this mean? It means that the state legislature from the state where your parent was a resident has predetermined who will inherit your parent’s property or estate should he or she die without a will. There’s specific percentages, and a specific order, of who gets what. In short, obtaining an inheritance is not as simple as waiting for a table and speaking to a waiter.

Other than intestacy, you only get an inheritance when your mom or dad want you to have an inheritance. What if they pre-determine who inherits, with survivorship features or will substitutes? If they have disposed of their bank accounts by survivorship features such asbeneficiary designations or by creating a joint account with the right of survivorship, those assets go to the named beneficiary. Likewise, if a will or trust leaves property on one’s death to somebody else, you’re out of luck. The only real exception to the rule that one may dispose of his or her wealth as they see fit, is that you can’t intentionally disinherit a spouse. A spouse may not be completely disinherited unless they consent to it in the form of a prenup or other marital agreement. If a spouse waives inheritance rights, then he or she may take nothing.

So, consider the following scenario: you and your dad were once very close, but years have passed, and you’ve grown apart both geographically and personally. You are not involved in his life that much, don’t remember him on holidays or on his birthday and, quite frankly, you don’t even think to call him often. No beers and bullshitting, no backyard barbecues or watching college football on Saturdays, or following the point spreads for NFL teams on Sunday.

…………………………..

Dad does have a very nice girlfriend. They’re not married, and although they both have their own houses, they are, for all intents and purposes, living together. Dad is retired now, plays a lot of golf, some tennis, and still keeps busy, a little bit, following the stock market, and watching CNBC. He also has his hand in one or two little business ventures, or investments, which you really don’t know too much about. In fact, of the last 5 to 10 years, you really don’t know much about your dad. Or the love of his life, his girlfriend.

His girlfriend is the one who would drive him to the hospital, the doctors’ appointments, to the specialists, and who made sure he was comfortable, safe and secure. She was the one who took off time from work, from her friends, so that dad got his meds and got to his appointments when he started getting sick. She was there with him making him breakfast, making him comfortable, and, towards the end, wiping his chin, and spelling the home healthcare workers, visiting nurses and Hospice personnel.

Your dad has passed away now, and, not wanting to appear greedy, you wait till you think it’s the appropriate time to ask about your inheritance.

You finally get a copy of your father’s will from his estate attorney, along with a copy of your dad’s trust. You think to yourself with a sigh of relief: “Good. My dad obviously was cautious and planned things right. He left me a trust fund.” Although you prefer to have the money outright, you wonder if there are any restrictions on your trust fund and how much is in it.

Imagine your shock when you read the will, and it says nothing about leaving an inheritance to you, but rather, it seems to leave everything to the trustee of your dad’s revocable trust. You assume that the will and trust are to be read together, so you start reading your father’srevocable trust, which is now irrevocable because he’s passed away.

Nothing.

The only reference to you in your dad’s trust is a short sentence which stings: I have one child, Kevin, who, for reasons best known to me, I intentionally make no provision for, nor leave an inheritance to.

His only son. His only child.

Your dad left nothing to you.

You examine the copy of the trust, you hold it up to the light as if the backlit pages will somehow reveal something. They don’t. The pages are simply copies, emailed to you in .pdf format by your dad’s estate attorney and printed on your home printer. You can’t believe it. But there it is –in black and white: nothing for you. No inheritance.

Your emotions run the spectrum. All at once, and then back and forth, and again, you’re angry, hurt, frustrated, regretful, and disgusted.

“This can’t be right” you think to yourself. “Can this really be happening? There must be laws. After all, I’m his only son. I have rights………. Don’t I?”

You talk to your wife about this: the fact that you’re getting nothing. The fact that you can get cut out of your dad’s estate plan. You’ve been disinherited. You don’t know what’s worse, whether you were entirely disinherited, or the fact that your dad’s money went to a nonfamily member, a stranger. His “girlfriend.”

You call your dad’s only brother, your uncle who you haven’t spoken to in years. He provides little guidance on your dad’s will or the trust, because he never discussed your dad’s estate plan with him. But he does share with you that he spoke to your father often and visited him many times. Your uncle thought your dad’s girlfriend was delightful. He was glad to see that your father was so happy. Your uncle shares with you that your dad’s girlfriend was a miracle worker during your dad’s last few months. You tell your uncle that it was good catching up and you promise to call back; but you really find no support on the line.

You talk to your buddies about it and they all say the same thing: get a lawyer. They are little or no help.

You look at your dad’s will and his trust for the 10^th time, re-read the email from your dad’s estate attorney, and recall the phone conversation you had with your dad’s estate attorney. No help. Nothing but dead ends.

You look more closely at the will and the trust, not knowing exactly what you’re looking for. And then it hits you: the signature.

It just …….doesn’t ………..look right. You haven’t seen your dad’s signature in years, but the one in front of you on his will is not the one you remember. You imagine that there were swirls and curves where you don’t see any on the signature page in front of you. Both the will and the trust were signed on the same day, which you find odd, yet you don’t know the significance of this. “Why would dad sign a will and a trust on the same day?” you start to wonder, grasping for straws, for some hope. You stare at the documents again and believe that the handwritten date was signed by a different person than who signed the will. The lower case printed date doesn’t match the cursive signature. You think to yourself “It’s got to be a forgery. They forged his will and they forged his trust.”

You begin a feverish internet search for “will contests” and “contesting the will” and “forged wills”. You go to www.Avvo.com and post questions about your dad’s will and the suspected forgery, hoping that some probate lawyers will respond back with guidance and perhaps an offer to help.

Forgery is absolutely a basis to have the will and trust set aside or declared void. To prove aforgery, however, you have to demonstrate that someone other than your dad put pen to paper. The only way you’re going to be able to do this is to conduct forgery discovery.

You’ll have to learn the facts and circumstances surrounding the purported signing of the will and the trust by your father. You will need to re-create, and learn exactly what happened at, the purported signing of the will and trust — what probate lawyers call the “execution ceremony.” That means you’ll need to talk to potential witnesses, talk to people who had knowledge of the will and the trust, talk to people who were purportedly at the will signing.

You may also want to attempt to obtain documents, emails, and letters, which shed more light on these forgeries.

Where do you go from here?

If you really think that your father’s signature on his will and trust is a forgery, you need a game plan or strategy to prove it. Because a valid will or trust typically requires two or more witnesses to the signing of the document, you should begin there. Set the depositions of the two witnesses to the will and the trust and ask them questions under oath with a court reporter transcribing the Q&A. If you prefer, and if it is permitted, videotape the depositions so that you have a visual of each witness who is answering your questions.

Some wills and trusts also have a notary public (notaries) who authenticate the identity of the witnesses and the person who signed the will. Just about every state requires two things: one, that your father and the witnesses signed the will or the trust in each other’s presence and at the same time. This means that your father saw the witnesses sign the will and the witnesses also saw your father sign the will. There is generally a proximity requirement. This means that the witnesses and your father had to all be together at the same time and place when the documents were signed. Two, for a notary to authenticate a signature requires that the notary personally witness your father signing the documents, as well as the witnesses, and the notary either had knowledge or obtained knowledge to certify the identity of the witnesses and your father.

How do you find the witnesses and notary public? The notary is typically registered with the state and his/her identity is generally readily available. Their identity may be online with the secretary of state’s website. Check the notary’s signature as well as the notary stamp for the notary’s full name and identification number. A notary public may only notarize a signature when that person signs a document in the presence of the notary. It is a serious offense, a felony in some states, for a notary to notarize a signature of a person if that person did not sign a document in the presence of the notary. It does not matter if the notary knows the person personally, recognizes a signature, or has notarized documents for that person in the past. Notaries typically have a bond, which means you can collect if a notary lied.

The witnesses may be identified from the document. If the signature is illegible or their identity is not known, ask the notary. Some notaries keep logs or journals of who signed what and when.

Depose the person who drafted or obtained the will and trust, or subpoena all the documents, files, notes, emails, and any other writings related to the will or trust. You want to learn who was doing what and who was talking to your dad or who was talking about your dad and his will and trust.

In the end, you want to question the witnesses, the notary, and any other person who has knowledge of the purported preparation and signing of your father’s will and trust. Specifically, you want testimony from people who were purportedly at the signing of the will and trust -theexecution ceremony. What do they say under oath? They need to swear that your father actually signed the will or trust — or that somebody else did. Or, that their signatures which appear on the will or trust are not authentic.

The process is not necessarily a tedious process, but, like any estate litigation, is costly. Of course, if you’re convinced it’s a forgery here’s your one shot to prove yourself right. If you don’t take it, you may end up kicking yourself for the rest of your life for not finding out what really happened.