Academic journal article Duke Law Journal

Inheritance Forgery

Academic journal article Duke Law Journal

Inheritance Forgery

Article excerpt

ABSTRACT

Many venerable norms in inheritance law were designed to prevent forgery. Most prominently, since 1X37, the Wills Act has required testators to express their last wishes in a signed and witnessed writing. Likewise, the court-supervised probate process helped ensure that a donative instrument was genuine and that assets passed to their rightful owners. But in the mid-twentieth century, concern about forgery waned. Based in part on the perception that counterfeit estate plans are rare, several states relaxed the Wills Act and authorized new formalities for notarized and even digital wills. In addition, lawmakers encouraged owners to bypass probate altogether by transmitting wealth through devices such as life insurance and transfer-on-death deeds.

This Article offers a fresh look at inheritance-related forgery. Cutting against the conventional wisdom, it discovers that counterfeit donative instruments are a serious problem. Using reported cases, empirical research, grand jury investigations, and media stories, it reveals that courts routinely adjudicate credible claims that wills, deeds, and life insurance beneficiary designations are illegitimate. The Article then argues that the persistence of inheritance-related forgeries casts doubt on the wisdom of some recent innovations, including statutes that permit notarized and electronic wills. The Article also challenges well-established inheritance law norms, including the litigation presumptions in will-forgery contests, the widespread practice of rubber-stamping deeds, and the delegation of responsibility for authenticating a nonprobate transfer to private companies. Finally, the Article outlines reforms to modernize succession while remaining sensitive to the risks of forgery.

TABLE OF CONTENTS

Introduction

I. The History of Inheritance Forgery
     A. Traditional Protections Against Forgery
     B. The Marginalization of Forgery

II. Modern Inheritance Forgery
     A. Wills
     B. Deeds
     C. Life Insurance Beneficiary Designations

III. Normative Prescriptions
     A. Wills
        1. Execution
        2. Burden-Shifting
     B. Deed Authentication
     C. Beneficiary Designations

Conclusion
Appendix

INTRODUCTION

In 2013, a widower named Earl Field died in a small Kansas town, leaving $20 million in property and two documents that purported to be his will. (1) One, which Field had executed in 2010, was prepared by his longtime attorney and left most of his assets to a charitable foundation run by his alma mater, Fort Hays State University ("FHSU"). (2) But a month before Field passed away, he allegedly created a codicil--an amendment to his estate plan--by drafting a letter that gave half of his property to his bookkeeper and caretaker, Wanda Oborny. (3) This self-made letter appeared to bear the signatures of Field and two witnesses, Steve and Kathy Little. (4) Because it seemed to satisfy the black-letter requirements for making a will, it enjoyed a presumption of validity. (5)

However, the circumstances surrounding the creation of this instrument were suspicious. Oborny initially claimed that she had found two similar but unwitnessed letters inside Field's office desk drawer. (7) Only after she learned that a valid will must be executed by attesting witnesses did she supposedly uncover the instrument that Steve and Kathy Little had signed. (8) Even more alarmingly, when the FBI tried to question the Littles about witnessing the disputed codicil, Steve killed Kathy and then committed suicide. (9) Finally, although Field had taken pains to minimize his taxes during life, his bequest to Oborny rather than the charitable FHSU foundation would have uncharacteristically saddled his estate with millions of dollars in tax liability. (10) Because of these peculiarities, FHSU contested the purported codicil as a forgery. (11)

The discovery of two documents broke the case open. One was a rough draft of the suspicious codicil prepared in Oborny's handwriting. …

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