Disputes frequently arise in matters involving trusts, estates and wills. They arise as a result of misunderstandings, differing interpretations, complexities and nuances in trust or estate structures as well as when there are suspicions of undue influence or misappropriation. Forensic accounting expertise is an essential component in resolving these types of disputes. The role of a forensic accountant in these matters can encompass:

  • Investigating allegations of wrongdoings; or
  • Providing other litigation and dispute resolution support as required
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Investigations

The concept of a fiduciary duty, which is described as the obligation that a trustee assumes to act in the best interest of a beneficiary, is a crucial element of a trust. The assets of a trust may be mismanaged, misused or misappropriated, which is comparable to an employee, executive, or business partner embezzling company assets.

When a trustee or other third-party is suspected of a wrongdoing, or when other improprieties in trust or estate matters are identified, a forensic accountant can be safely relied upon to:

  • Scrutinize disbursements
  • Trace funds
  • Locate or confirm the existence of assets that have been entrusted to the person in question
  • Reconstruct the financial records of the suspected fraudster, particularly where there is suspicion of records being altered or destroyed
  • Analyze the banking and investment records and other information and documentation, such as text message and email correspondence
  • Verify assets, liabilities, income and expenses
  • Conduct investigative interviews
  • Quantify damages or losses, if any
  • Produce investigative reports, affidavits and schedules which clearly and accurately summarize the findings
  • Support settlement negotiations between the parties involved
  • Testify in court with respect to the findings from the investigation

Litigation and Dispute Resolution Support

Even if there are no suspicions or allegations of misappropriation, trust and estate disputes can be complicated, emotional and contentious. Since these disputes are often financial in nature, forensic accountants play a valuable and necessary role in achieving a resolution for disputes by:

  • Reviewing financial disclosure and other relevant documents or data related to the dispute
  • Identifying relevant information and documentation and subsequently preparing lists of outstanding items to be requested
  • Locating or confirming the existence of assets
  • Reconstructing financial records
  • Verifying the assets, liabilities, income and expenses
  • Quantifying damages or losses, if any
  • Supporting settlement negotiations
  • Organizing and compiling records
  • Producing reports, affidavits, and schedules, which clearly and accurately summarize findings
  • Testifying in court

Adam and his sister Allie believed that they were victims of a’probate fraud’ perpetrated by their stepbrother with whom they share the same mother. Their stepbrother Orenthal James – acting asthe soleexecutor and holding aPower of Attorney (henceforth referred to as POA) for their late mother – transferredfunds that totaled$750,000 by using the POA to a bank account in his own name just prior to her death.

The documents that were obtained indicated thatOrenthal James had convinced his mother to change her Will three months prior to her death. Medical evidence suggested that their mother lacked the mental capacity to be able toinstruct a Will writer to change the content (the previous will divided the estate equally betweenthe three siblings). Nevertheless, the new Will was drafted and finalized,which resulted inAdam and Alliebeing removed as beneficiaries.As previous beneficiaries,Adam and Allie would have been entitled to a copy of the estate accounts, which would have shown how the shares in the estate werecalculated. The siblings decided to hire a forensic accountant to assist them in rectifying the situation.

The forensic investigator found attendance notes made by the legal clerk who had prepared the disputed Will. These notes suggested that the deceased had been in full possession of her mental faculties. The notes did not describe someone as being terminally ill and suffering from an advanced stage of Alzheimer’s.Copies of the deceased’s bank statements were subsequently obtained that dated back five years prior to her death. The statements were scrupulously analyzed with the hope of understanding the changes in the deceased’s financial behavior during this period. That is, before and after the amended Will. TheForensic Analysis revealed that the deceased had a number of credit card accounts, all of which were obtained while she was mentally incapacitated. Other examples of ‘gifting’ to Orenthal James were observed within the accounts.

Theforensic investigators report was used as a basis to understand the potential loss to the deceased prior to her death and therefore, to the beneficiaries of her estate. The Will was disputed on the grounds that the Will maker lacked testamentary capacity to provide direction to the Will writer, as well as on the grounds that the newWill was based on the undue influence and coercion applied by Orenthal James.

Relevant Evidence:

  • Financial Records
  • Real Estate Records
  • Oral Evidence
  • Asset Tracing
  • Accounting Records
  • Electronic Evidence (text or email)

Red Flags:

  • An unequal distribution of assets among the children of the Will maker
  • Ongoing tension between family members
  • A noticeable decline in the relationship between a spouse and the children from a prior marriage
  • The selection of fiduciaries
  • The disposition of a family business
  • Economic disparities among the beneficiaries
  • The inclusion of a co-trustee to administer, manage and distribute assets
  • Beneficiary dependency or mental illness
  • Estrangement or Disinheritance
  • A marriage that occurs at an advanced age
  • Advanced benefits allotted to one heir and not to the others

To determine whether youmay be susceptible to fraud in the context of a trust or estate matter, take the following brief survey: