Two brothers are convicted of defrauding the other heirs

At G. Elías y Muñoz Lawyers, we are experts in inheritance law, and in this article we want to discuss a case of inheritance fraud, as well as another type of crime (misappropriation) that can also occur in inheritance cases.

In a previous article, we saw that, according to a recent study, the main source of legal conflict for 77% of Spaniards is inheritance, and the rulings handed down by the courts in these cases confirm this. Below, we analyse a ruling by the Provincial Court of Valladolid in which two brothers were convicted of defrauding the other heirs.

Two heirs appropriated assets from the estate to the detriment of the others

The deceased father was the owner of a commercial company which, after his retirement, only collected income derived from the assets of that company. His daughter, Carina, was involved in advising the company and dealt with tax matters. In November 2021, she took advantage of this circumstance to be appointed sole administrator of the company. She then drew up a document signed by her father and herself in which the company's capital was increased by six more shares, assigning three to her brother and three to herself. She then made this capital increase public, but did not register it in the Commercial Register until several months later. The father died and the siblings obtained 3/7 of the company's assets. With an outlay of around €9,000, they obtained assets valued at almost €600,000, seriously harming the other heirs.

The judges of the Provincial Court of Valladolid determined that all the elements of a crime of fraud regulated in the Criminal Code were present and convicted the two brothers.

The crime of fraud: characteristics and penalties

The crime of fraud is a property crime that consists of a person using deception with the intention of profiting by causing the victim to make a mistake, inducing them to carry out an act of property disposal to the detriment of themselves or a third party. The crime can be committed against movable property, immovable property, rights and services.

It is regulated in articles 248 et seq. of the Criminal Code.

The basic elements of the crime are as follows:

• Deception, which can be carried out in many different ways against a person.
• The error made by the deceived person.
• The act of disposal by which the deceiver obtains a profit. In this sense, it is important that the perpetrator of the crime acts with the intention of making a profit.
• The financial damage to the victim.

Types of fraud according to the Criminal Code

There are several types of fraud. Basic fraud is regulated by Article 248 of the Criminal Code and is punishable by imprisonment for 6 months to 3 years.

On the other hand, there is minor fraud, which does not exceed €400 and is punishable by a fine of 1 to 3 months.

The Criminal Code also regulates aggravated fraud, which refers to several cases:

• Cases in which the fraud involves basic necessities such as housing.
• When it is committed by abusing another person's signature or by rendering a file, protocol or other public document unusable.
• Fraud affecting goods belonging to historical, cultural or scientific heritage.
• When the situation in which the victim is left is particularly serious.
• If the value of the fraud exceeds €50,000.
• If it is committed by abusing personal relationships between the accused and the victim.
• If the perpetrator has been convicted of at least three fraud offences.

In all these cases, it is a particularly serious offence and the penalty is between 1 and 8 years' imprisonment and a fine of 6 to 24 months.

Another type of fraud is known as improper fraud, in which the perpetrator acts with the intention of making a profit and causing financial damage, but not all the other requirements are met. There are three cases:

• The disposal, encumbrance or leasing of movable or immovable property (e.g. hos.using), falsely attributing the power to dispose of it and causing damage to a third party.
• The disposal of movable or immovable property by concealing encumbrances or disposing of it free of encumbrances and encumbering it before the final transfer to the purchaser, thereby causing damage to the purchaser or a third party.
• Granting a simulated contract causing damage to another person.

The penalty for this type of simulated fraud is 1 to 4 year

Other cases of crimes related to inheritance

Fraud is not the only crime that has been analysed by the courts in relation to inheritance. Another common case is that of misappropriation.

The High Court of Justice of Castile and León convicted a woman of misappropriation after she withdrew €13,000 from her brother's bank account on the day of his death, followed by another €40,000 the next day and two further withdrawals totalling €4,850.

The ruling ordered the woman to return the money and stated that she had acted to deprive the deceased's son of his inheritance.

The crime of misappropriation is regulated by Article 253 of the Criminal Code, which describes this crime as one in which a person appropriates for themselves or for a third party money, effects, securities or any movable property that they have received on deposit, commission or in custody. The penalty that can be imposed is imprisonment for 6 months to 3 years.

In short, inheritances can give rise to serious problems that have to be dealt with by the courts. In some cases, these may be crimes such as fraud or misappropriation that harm an heir.

If you have been named as an heir and need help collecting your inheritance, contact our team of expert inheritance lawyers and we will help you.