Inheritance Fraud

Perhaps nowhere in the United States is inheritance fraud as prevalent as Florida. This is not to say that people in Florida are more dishonest or less trustworthy than across the United States, but the size and age of our population makes Florida ripe inheritance fraud. The warm weather and lack of an inheritance tax also make Florida an attractive location for retirees.

Inheritance fraud can take many different shapes and be perpetrated by very different actors. It can range from a person acting under a durable power of attorney who engages in self-dealing by retitling bank accounts for their own benefit, or it can be accomplished by a relatively new presence in the decedent’s life convinces them to make a new last will and testament. It can also take the form of beneficiary designation changes, or having the decedent cash in annuities that have long had a designated beneficiary.

A person, of course, is free to leave their assets to whomever they choose, provided their rights have not been removed and there is not a court order mandating otherwise. People may have multiple prior spouses, and children from different relationships, and be conflicted on how to devise their assets. Minor children and surviving spouses have statutory protections (through elective share, homestead property and family allowance)

Despite this freedom to devise and bequeath, when a child, companion, or other loved one learns of being disinherited (or receiving a dished share of the estate), they often are unaware that they may gave a cause of action under Florida Law. Circumstances may justify brining a lawsuit under one of more theories to undue a change that appears contrary to the decedent’s longstanding estate plan.

Causes of action include undue influence, fraud, duress, and lack of capacity. Additionally, the tort of intentional interference with an expectancy of inheritance is available under Florida law. The elements of intentional interference with an expectancy of inheritance include “(1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages.” Whalen v. Prosser, 719 So. 2d 2, 5 (Fla. 2d DCA 1998). The Court explained the cause of action:

Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations. The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is. Thus, the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights.

Id. at 6.

Should you believe you are a victim of inheritance fraud, consider consulting with an experienced probate litigation attorney.