You strongly suspect that your deceased family member’s will was obtained, by another family member or individual, through “dubious circumstances.” How should you proceed? What is the legal basis to challenge a probated will in Tennessee, and what is the process involved?
You should first contact a qualified probate litigation attorney who will be able to assist you in analyzing your case to determine whether it is wise or advisable to move forward with a claim.
In Tennessee, there are several different ways to “contest” (or dispute) a will offered for probate. The following are valid grounds in Tennessee for challenging a will in a Tennessee court:
- The will wasn’t signed in accordance with applicable state law. In Tennessee a will is ineffective and invalid if not executed in accordance with the Tennessee Execution of Wills Act. This Act requires the testator (signor of the will) to sign the will in the presence of two witnesses. The witnesses must also sign the will in the testator’s presence and in the presence of one another. Tennessee courts have strictly applied this statute and struck down wills which do not meet the requirements.
- The testator did not have the mental capacity to sign the will. “Mental Capacity” means that the signor of will knows that he/she is signing a will, knows what property he/she is giving away by the will, and knows the identity of the individuals to whom he/she is giving this property. If a challenger can prove the testator was not mentally competent on the day the will was signed, the will can be contested for this reason.
- The will was signed due to the “undue influence” of another person. To prove that someone exerted “undue influence” on another in the making of a will, one must prove that a “confidential relationship” existed between the testator and the alleged influencer. If the influencer lived with the testator, took care of them, and assisted them day to day, this would normally show such a relationship (although other circumstances could show this as well). If a challenger can show that a “confidential relationship” existed, then the burden of proof shifts to the alleged influencer to show that the testator was not unduly influenced by that person in the making of the will. In many cases, charges of both a “lack of mental capacity” and “undue influence” will go together and both exist in a will contest situation.
- The will was procured by fraud. If the testator was tricked into signing something he/she thought was a deed, power of attorney, or another legal document, but was actually a will, this would be grounds for a will contest for fraud. However, this claim can be difficult to prove, particularly if the two witnesses to the will testify that the testator knew what he/she was doing, and had the mental capacity and understanding to sign the will.
Can my attorney’s fees be recovered if I succeed in challenging a will? The answer to this question depends on the facts of each case. However, Tennessee Courts have repeatedly held that the attorney’s fees of a party challenging a will shall be paid from the funds of the estate if “the entire estate benefited from the efforts of the party’s attorney”. In re Estate of Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct. App. 2005); see also Pierce v. Tharp, 224 Tenn. 328, 455 S.W.2d 145, 148 (Tenn. 1970). If you are successful in proving a will was invalid due to undue influence, fraud, or lack of mental capacity, this would normally be considered a benefit to the entire estate, and a court would consider awarding the challenger his/her attorney’s fees from the estate property. This is, however, completely discretionary with the trial court.
If you believe you have grounds to challenge an invalid will, contact our firm at 865-546-9321. We will evaluate your case and give you our best analysis of your options.
Rich practices in numerous areas of civil litigation and business law, including commercial litigation, insurance, bankruptcy, employment law, real estate litigation (title insurance defense), landlord / tenant law, collections law, personal injury, workers’ compensation, veterans’ disability, products liability, probate and estate litigation. He advises and represents both individuals and businesses, small and large. Rich’s priority in serving his clients is to provide timely, effective and efficient legal representation and advice, while advocating their interests in the state and federal courts of Tennessee. He cares about people and their individual situations. Rich focuses on being the best advocate for his clients.
