How Estate Planning Attorneys Can Benefit from Electronic Evidence

At legal conferences and trade shows we often talk with Estate Planning/Probate attorneys who see our sign and say they don’t have a need for Digital Forensic services — they assume we only work with the litigation attorneys.  However, estate planning attorneys can benefit from Electronic Evidence as over the years we’ve performed a number of cases in this arena. Read the article below to learn how probate and estate planning attorneys can benefit from using electronic evidence for validation of a will.

How we’ve helped Estate | Probate attorneys:

• We can evaluate the authenticity of electronic versions of documents when the authenticity is being called into question,
• We have analyzed prior drafts, temporary files and other copies of documents to determine the true intent behind specific decisions where the language is ambiguous or the intent is not understood but needs to be, and
• We have even helped the parties evaluate the reasonableness, clarity, cognitive ability and “state-of-mind” of the decedent at the time that changes were made to the documents for purposes of attacking and/or defending document contests

While we recognize that traditionally probate matters have hinged on formalized paper documentation, such as Last Wills and Testaments, we also know and acknowledge that the world is becoming an ever-increasing digital world and when the authenticity of those documents are called into question, oftentimes evidence that can be of assistance lays present in electronic form. In fact, in many cases the decedent’s true wishes may only be captured in electronic form.

As Vestige specializes in the gathering, analysis and retrieval of electronic data we have gained experience in different types of probate matters. These matters have had very specific and intriguing idiosyncrasies which have resulted in successes for the hiring client.

Sample Representative Matters

Individual v Individual  |  Falsified Last Will & Testament

Vestige was engaged by the children of the decedent, in a will contest between the immediate family and the stepmother and her children.  Our clients alleged that the step-mother took advantage of the decedent’s declining state-of-mind and ailing health to force changes to the will that were favorable to the step-family.  Forensic analysis of the workstation used by the stepmother revealed significant alterations to the will prior to filing that occurred at times that would have been impossible for the decedent to have been the one to make the changes.  The stepmother had resorted to some advanced means of obfuscating the changes, including using a non-standard application to avoid falling victim to built-in tracking of changes in Microsoft Word.  In the end, that didn’t matter, as the recovery of, testing of and reporting of the specific remnants and digital artifacts by Vestige proved that the changes to the documents were improper. Upon presentation of the digital forensic evidence identified by Vestige, the stepmother admitted to the scheme.

Individual v Individual   |  Will Contest

Vestige was engaged in a probate dispute surrounding the authenticity of a digital tape recording made during a series of advisory/consulting meetings that our client and the opposing side and their counsel attended surrounding a bitter will contest.  Through sophisticated analysis of both the analog and digital evidence stored upon the digital media, Vestige was able to show that not only had the original media been altered after the meetings were held, but that the recordings provided to our client during the discovery phase did not include relevant and damaging (to opposing side) evidence.  Vestige was able to recover the “missing” information and expose the fraud committed by opposing side.

If Probate/Estate Planning falls into your realm of practice, be sure to contact your trusted Digital Forensic Experts.

By Damon S. Hacker, MBA, CCE, CISA,
President & CEO, Vestige Digital Investigations

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