Dear Mr. Premack: I know a family well, and in the probate case regarding the father’s death, I know that there is an impostor claiming to be an heir. The impostor’s purpose is to obtain assets of the decedent. Is this impostor committing a crime and if so, what crime? What can I do as a bystander to keep this impostor from getting the money so the legitimate heirs will receive the estate? – S.J.
I must assume that this father died without a valid legal Will, because if he had one then the identity of the heirs would simply be declared in the Will. The impostor would then be contesting the Will in an effort to have it declared void. If that effort were to succeed, then the laws of intestacy would apply… and if the impostor’s lies establish a claim as an heir-at-law, then the people you know as the legitimate heirs could lose the estate.
I also assume that when you say this person is an impostor, you have full knowledge of the facts and that any claim this person could bring forward would indeed be false. There can be situations that were covered-up – even from close family friends – where a supposed “impostor” is indeed a legitimate heir. Before you make loud accusations you should be sure that your information is accurate.
There are laws that make certain fraudulent acts into criminal acts. For instance, it is a crime in Texas to perpetrate a fraud involving a Will or codicil to a Will. Creating or altering a Will so that it appears to be the act of someone who, in fact, did not authorize that act is a state jail felony.
It is also a crime to present false evidence in a court proceeding, while under oath, with intent to deceive and with knowledge of the meaning of the false evidence. If convicted, that behavior is treated as a third-degree felony, unless the falsity is shown to be immaterial to the course or outcome of the legal proceeding. That exception would not apply here, because act of falsely representing oneself as a proper heir to an estate is inherently material to the outcome of the legal proceeding.
However, no crime is committed if the person does not intend to deceive. For instance, there would be no crime if someone truly believes the decedent was her father, but is shown during the court proceeding (by a DNA test) to be unrelated. That person would simply lose in court when the court rules she is not a legal heir because her belief about the identity of her father was scientifically disproved.
As a bystander, you should begin by contacting the attorney representing those individuals who you claim are legitimate. Share your information, and allow the attorney to gather evidence that buttresses your claim. The attorney may use your information in negotiations to eliminate the impostor’s claim, or may call you as a witness if the case goes to trial. If the impostor’s claims rise to the level of criminal fraud or perjury, the court will make the appropriate referral to the district attorney to determine whether prosecution is appropriate.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, May 21, 2010