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Proving Fraud When Elderly Victim Has Been Isolated

Proving Fraud When Elderly Victim Has Been Isolated:
Circumstantial Evidence

In many cases of elder fraud, there is no direct evidence, or “proof”, of the fraud. The elderly victim often is first cleverly isolated by the perpetrator, who sometime is a family member. Months or years later, the rest of the family discovers that during the period of isolation the perpetrator caused the elderly, physically and/or mentally impaired victim to sign documents which transferred assets to the perpetrator. The perpetrator often seeks to hide behind the fact that no one was present at the time the documents were signed and thus cannot provide direct evidence of what happened.

Courts have held that circumstantial evidence and direct evidence are of equal value, especially because some facts can only be proved by circumstantial evidence. The weight accorded an inference is fact-dependent and can be disregarded as speculative only if reasonable minds can come to the conclusion that the inference is not supported by the evidence. The question of whether the circumstantial evidence is conjectural and the inference speculative is essentially the distinction between a reasonable inference and a guess. In re Estate of Marsh (2nd Dist.), 2011-Ohio-5554.

In isolation cases, circumstantial evidence often is used to prove fraud. For example, if the transfer caused the victim’s assets to be distributed in a manner inconsistent with the victim’s current or prior last will and testament, the will can be admitted into evidence and considered by the jury. And the jury may infer from the prior will, the conditions of isolation, the mental state of the victim, and the fact that large transfers were made to the perpetrator, that the perpetrator exercised undue influence upon the victim. Or that the victim lacked the ability to understand the nature of the documents that were signed.

So proving elder fraud when the victim has been isolated can be difficult, but an experienced elder fraud litigator can successfully work with circumstantial evidence and inferences to obtain justice.

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