Chapter B. Fraud

• Jurisdiction: Washington

B. FRAUD

B.1. In the Inducement

B.1.a. General Principles

Many possible results may follow from the revelation that a testator's will was induced, in whole or in part, by an incorrect belief in the existence of some fact. If the belief was the mistaken but understandable product of faulty reasoning, or simply a mistake due to misinformation passed along in good faith from some outside source, the will is valid. But if the misapprehension of fact was the product of an insane delusion (as discussed in §A.3.b.), or was the result of fraudulent misrepresentations intended to induce a particular disposition, the will once again must fail. It is this last type of false premise that the present section addresses.

A detailed definition of fraud in the inducement was set out in In re Bottger's Estate:¹⁶⁸

"Fraud in the inducement consists of wilfully false statements of fact other than those relating to the nature of contents of the instrument, made by a beneficiary under the will which is thus induced, which are intended to deceive testator, which do deceive him, which induce him to make a will, and without which he would not have made such will."

Expressed otherwise, the representations must be with reference to extrinsic facts, and they must be made to the testator by, or on behalf of, a person benefiting under the will; the statements must be false and must be known to be so by the person making them (although in some circumstances mere suppression of the facts may be sufficient to constitute fraud); and the facts misrepresented must be material and must induce the making of the will in question.¹⁶⁹

The elements of fraud have similarly been defined as

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(1) representation of an existing fact; (2) materiality of the representation; (3) falsity of the representation; (4) knowledge of the falsity or reckless disregard as to its truth; (5) intent to induce reliance on the representation; (6) ignorance of the falsity; (7) reliance on the truth of the representation; (8) justifiable reliance; and (9) damages.¹⁷⁰

Following these principles, the court has refused to nullify a will for fraud when the various "facts" that allegedly induced the disposition either were true;¹⁷¹ were more "opinions" than statements of fact;¹⁷² were not shown to have been passed along or known to the testator;¹⁷³ were told to the testator but not by the persons who benefited from them;¹⁷⁴ were not a factor in inducing the testamentary dispositions in question;¹⁷⁵ or were conveyed by the person who benefited, but that person believed them to be true.¹⁷⁶ On the other hand, fraud was found when the will's beneficiary had isolated the terminally ill testator from her family and friends while he falsely represented to her that they were trying to "put her in a home in order to get their hands on her estate."¹⁷⁷

Another significant factor in finding fraud in the inducement is whether the testator had an opportunity, following the alleged misrepresentation, to investigate and learn the true state of affairs, by discussion either with the individual against whom the misrepresentation was directed or with some impartial advisor.¹⁷⁸ Similarly, an opportunity for the adversely affected persons to gain access to the testator and prove their innocence is evidence that there was no fraudulent inducement.¹⁷⁹

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B.1.b. Distinguished From Undue Influence

Fraud and undue influence are closely related concepts, and they often overlap in the cases.¹⁸⁰ The evidence supporting one may also support a finding of the other.¹⁸¹ The court has taken pains, however, to distinguish the two. As is explained in detail elsewhere in this chapter,¹⁸² the concept of undue influence is that of a testator whose free will has been overborne by another and whose testamentary disposition therefore represents the desires not of the testator, but of the one wielding the undue influence. Fraud, on the other hand, contemplates a testator who is freely and voluntarily expressing his or her true wishes at the time of execution of a will, but whose wishes are based on false information derived from the misrepresentations of the person or persons benefiting.¹⁸³ The difference is between a testator whose mind has been coerced and one whose mind has been deceived.¹⁸⁴

B.2. In the Execution

B.2.a. General Principles

Fraud in the execution refers to an intentional misrepresentation as to the nature or contents of the document being executed by the testator.¹⁸⁵ The requirements of scienter, causation, etc., are the same as have already been indicated for fraud in the inducement,¹⁸⁶ except that the facts misrepresented relate to the document itself and not to the surrounding persons or circumstances. Fraud in the execution is even more closely associated with undue influence¹⁸⁷ than is fraud in the inducement, because it usually (although not always) concerns a deception of the testator at the time of execution, such as misrepresenting the contents of the will to a feeble testator unable to read it unassisted. Obviously, this is also a situation conducive to undue influence or duress against the testator, and the two grounds

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of contest are therefore often raised and discussed together. Thus in In re Jaaska's Estate,¹⁸⁸ the court was dealing with a will whose language clearly was not that of the testator, being well beyond his limited command of English. The court applied the general test for undue influence found in Dean v. Jordan,¹⁸⁹ finding a confidential relationship with the beneficiary and an unnatural disposition.¹⁹⁰ These findings were bolstered by the suspicious circumstances relating to the language of the will, and together this evidence shifted to the beneficiary the burden of proving that the testator "knew and understood the contents of the document he signed."¹⁹¹ Although the court couched its remarks in terms of "fraud and undue influence," without distinguishing between them, the facts were clearly those of a testator unaware of what he was signing, rather than one aware of the contents but coerced into signing against his will.¹⁹² A very similar situation existed in In re Ganjian's Estate,¹⁹³ in which the testator, under heavy sedation, was unable to read the will prepared by her son's attorney, who supposedly paraphrased it to her after excluding others from the room. Again the court did not specifically distinguish between fraud and undue influence.

Stated otherwise, the court in such a case is viewing fraud as a form or means of exercising undue influence. But whatever the terminology, the result is a conclusion that the document signed by the testator was "not his...