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Family Business Succession Planning and Criminal Code Series- Criminal disputes about withdrawal of deposits from the deceased between family members (inheritance issue)
I. Introduction
Social incidents that involved the criminal accusation from other family members due to the withdrawal of deposits after the death of the deceased can be often seen from the news media. Which hidden behind the ''so-called'' heist and inheritance disputes is usually the family entanglement.
The withdrawer is usually one of the legitimate heirs. However, due to changes in the economy and society, the one who takes care of the deceased during his/her lifetime gradually turned to be caretakers or friends. Therefore, the person who withdraws the deposit of the deceased may also be someone other than the heirs.
Once that family member deceases, the legal effects of the succession of property/inheritance thus begins. At this time, the disposition of the inheritance including the deposit or the exercise of rights must be agreed upon by all the heirs. Without the consent of all the heirs, even if the person withdrawing the deposit claims that his/her withdrawal is due to the prior authorization or gift from the deceased, or a mere payment of medical and funeral expenses, it is still possible to cause criminal liabilities. After all, what are the committed crime and criminal liability of a person who withdraws the deposit of the deceased without the consent of all heirs? Will different case backgrounds affect the court's determination? Recently, Lee and Li has successfully obtained a non-indictment from the prosecutor in one of such criminal cases. This article will introduce the opinions of the Taiwan courts and the ways of dispute prevention. After all, prevention is better than cure.
II. Analysis of Possible Offenses and Defenses of Withdrawer
(I) Crimes of Prosecution upon Complaint and Crimes of Prosecution Upon Prosecutor's Initiation
If the withdrawer is one of the legitimate heirs, it should be noted that the Criminal Code has special provisions for the offense of larceny, embezzlement, and fraudulence. The prosecution may be instituted only upon complaint if they are committed among lineal blood relatives, between spouses, among the relatives who live together and share their property, blood relatives within the fifth degree of relationship or relatives by marriage within the third degree of relationship.
On the other hand, as the deposit would be withdrawn by the withdrawer with the deceased's seal on the withdrawal slips, this kind of dispute often involves the offenses of forging private instruments and putting them into circulation under Article 210 and Article 216 of the Criminal Code, which are the crimes of prosecution upon initiative.
As for the crimes of prosecution upon complaint, it should be noted that the complaint must be filed within six months from the day a person entitled to complain was aware of the identity of the offender. This is an often neglected period that should be aware of in many property crime disputes between family members. Moreover, the difference between "the crime of prosecution upon complaint" and "the crime of prosecution upon initiative" is that once the former's complaint is withdrawn, the prosecutor can no longer prosecute due to the lack of the "complaint" element; however, in the case of the latter's crimes, the prosecutor may still prosecute even a settlement or a mediation to withdraw the complaint has been made between the offender and the complainant beforehand.
(II) Analysis of Common Defenses
Once the withdrawer is accused of the above crimes, the defenses usually include the following claims: withdrawer was authorized by the deceased during his/her lifetime; the deposit is the gift from the deceased before death; the withdrawal is simply to pay for the medical or funeral expenses of the deceased. A brief analysis for whether the claim is admissible is as follows:
1. Authorized by the deceased during his/her lifetime
Modern people are busy at work and highly employed in urban. The elders living in their hometowns often have to resort to the assistance of other relatives or the professionals such as caretakers. There have been cases in which the elder authorized the caretaker to withdraw their deposits for daily purchases and needs. In the event which the caretaker has continued to withdraw money from the elder’s account until the elder’s death, the Taiwan Supreme Court reveals that even if the caretaker was authorized to withdraw deposits at discretion by the elder during his/her lifetime, the authority would no longer exist after the death. Once the authorizer dies, the legal relationship of deposits withdrawing authorization is of course eliminated. The Supreme Court further emphasized that there is no difference if the authorized person is the one with inheritance rights (reference to the Supreme Court Criminal Suit 107-Tai-Shang-Zi-1753 and the Supreme Court Criminal Suit 103-Tai-Shang-Zi-3142).
2. The gift from the deceased before death
Different from the aforementioned situation of authorization, if the elder gives the deposit to the caretaker before his/her death, the deposit would belong to the caretaker and would not become part of the succession propertywhen the elder deceases. In this case, the Taiwan High Court Criminal Suit 100-Shang-Su-Zi-2470 and the Taichung Branch of the Taiwan High Court Criminal Suit 107-Shang-Su-Zi-871 indicate that since the deposit has been the property of the withdrawer, there is no harm to other heirs in substantive law. Moreover, as the withdrawer could originally use the deposit at discretion, nor did it damage the properness/legitamacy of the financial institution's management to the deceased's account. In addition, compared with the situation of authorization, it is more likely that there is no subjective awareness of "the lack of authority". As a result, these cases in which the deposits are gifts before death are found not to be involved in the commitment of forging private instruments.
On the other hand, as the withdrawn deposit has already belonged to the caretaker, he/she has no intention to exercise unlawful control over the deposit for himself/herself, so the crime of fraudulence or embezzlement would not be committed.
3. The withdrawal is to pay for the medical or funeral expenses of the deceased
As funeral affairs have been greatly emphasized by Taiwanese society and usually incur considerable expenses, it is also a frequent situation faced by many caretakers of the elders to withdraw deposits to pay for the medical or funeral expenses. Although the aforementioned expenses seem to be paid for the deceased, and the withdrawers do not use the deposit for their own purposes, there are still possibilities to commit crimes. The Supreme Court Criminal Judgment 109-Tai-Shang-Zi-5169 reveals that if the caretaker is subjectively aware of the lack of authority to make withdrawal slip, even his behaviors are for the deceased, he still has the intention to forge private instruments and put them into circulation, which results to the criminal liabilities.
As for the crimes of fraudulence and embezzlement, if the withdrawer can prove that the deposits are indeed used to pay for funeral or medical expenses, there is no intention to exercise unlawful control over the deposit for himself/herself, the crime of fraudulence or embezzlement would not be committed.
III. Conclusion and Suggestion
From the discussion in this article, it can be indicated that even if there is a clear authorization of the withdrawal, the withdrawer is still likely to commit criminal crimes. If the deceased did not have plans in advance during his/her lifetime, the authorized person must avoid withdrawing deposits in the name of the deceased without the consent of all the heirs.
Therefore, in order to prevent the aforesaid disputes, people who wish to distribute the property to the preferred person and avoid litigation between the heirs after his/her death, it is advisable to have a succession plan as soon as possible. If the deposit is to be gifted before the death, it is recommended to make it in writing in order to be saved as evidence, and the deposit should also be delivered.
Additionally, it is also an option to specify properties as the bequest through a will. Besides, people could use the trust system to enjoy a more tailored and flexible succession plan, on which the future generation could be well cultivated. In this way, the real intention of succession can be guaranteed, and people could surely avoid the disputes and results against his/her will due to the operation of the legal inheritance system.