What is a Sham Will?
This challenge of a last will and testament is based on the contention that the will was bogus, a fraud, a forged will. Bottom line: the caveators are claiming the will is a fake.
Kirk Sanders litigated one such sham will (see copy-the names have been removed). This one was juicy (not a legal term).
For starters, Sanders got hired right before a clerk of court hearing six months into the estate process. The clerk was hearing the case to determine the validity of the will based on the execution formalities.
If you look at the attached image, you’ll probably see why.
So we get to the hearing. The notary had been subpoenaed to appear. He shows up wearing Dale Sr. style sunglasses.
The clerk had to demand the notary remove the glasses three times to get him to comply. Side note: the notary was a former used car salesman.
Now this notary didn’t want to testify and the reason is, notarizing fraudulent signatures is a misdemeanor. While waiting for the hearing I noticed the notary was well acquainted with several persons coming out of the criminal courtrooms across the hallway. There had been one previous hearing scheduled and the notary left before the hearing got started. I didn’t want that to happen on my watch, so I stuck around him.
We get in the clerk’s hearing, get the notary sworn, get his sunglasses removed under protest and commence to grill him on whether he notarized the document. We laid some ground work to let the notary know there were problems. A list of problems with the will:
1) One of the witnesses was incarcerated on the day the will was signed. That witness had no visitors that day. The testator didn’t visit him that day. Kind of hard to prove that incarcerated witness was present when the decedent the document purported to be the Last Will & Testament. This was the “kill shot”.
2) Notary didn’t sign his name on the notary portion. This would be a challenge to execution formality to the Last Will & Testament.
3) Both witnesses were offspring of the surviving spouse who was inheriting everything but one item. This would bode well for an argument they were interested witnesses and not independent.
4) Both witnesses had criminal records which does not automatically disqualify them as witnesses, but is a factor in determining the validity of the will.
5) Surviving spouse had stated to the decedent’s children while he was dying in the hospital that decedent had no will.
So with this ground work laid, the notary reached over and looked at the will for a second and quickly determined he did not notarize the document. He expounded on not knowing how someone got his notary seal and that he didn’t give it to anyone. The clerk suspended the will. I filed the will caveat litigation and served it on all the interested parties days later. In addition, I made a motion for a public administrator be appointed for the estate. I also had to get a public administrator appointed for the now deceased step-mom/surviving spouse.
The case is resolved. Now I’m going after certain parties for improper distributions (technical term: disgorging the ill gotten gains).
By the way, a lot of estate litigation revolves around step-parents and children born from the decedent’s previous marriage(s).
CALL KIRK SANDERS at 336-768-1515 to discuss your Estate Litigation matter.
