Will Contest / Probate Litigation

Nashville, Tennessee Law Firm for Disputes related to:

  • Beneficiary Designations in Life Insurance Policies, Bank Accounts, Retirement Accounts and Other Pre-Paid Accounts
  • Filing Claims Against Estates for Debts Owed
  • Disputes Related to the Division of Assets

A will may be challenged on the basis that the decedent (referred to as the "testator") was not of sufficiently sound mind at the time he or she executed his or her will to enable the decedent to know and to understand what he or she was doing. A will may also be challenged on the basis that its execution was procured through fraud or undue influence. Legal actions and lawsuits where wills are challenged are referred to as "will contests." In Tennessee, either party to a will contest case is entitled to a jury trial. If you are involved in a dispute about a will, you should retain an experienced trial lawyer of your choosing (not just a "probate lawyer" or "estate planning lawyer") to represent you.

Unfortunately, it is too common that caregivers, family members and friends use undue influence, and even fraud, to compel an elderly or infirm person to change a will, a beneficiary designation, or to transfer land or other assets. A person who has been negatively affected by a will change, beneficiary change or transfer of land or other assets that was the result of fraud or undue influence, can file a lawsuit and seek to have a court void the effect of such change or transfer.

In order to determine whether or not a will should be declared invalid because the decedent (or testator) was not of sound mind, a jury may consider such factors as physical weakness, disease, old age, and failing mind or memory. In undue influence cases, once a "confidential relationship" has been shown between the decedent and the party who allegedly exercised the undue influence, a significant legal rule comes into play. If a person is determined to have had a confidential relationship with the decedent, that person must prove the fairness of a transaction between that person and the decedent by "clear and convincing evidence." The above rules about undue influence, confidential relationships, and the clear and convincing standard also apply to transfers made by persons still living and to pre-death asset transfers.

Frequently Asked Questions about Will Contests, Probate Litigation and Other Matters Related to the Division of Assets of a Deceased

Q: How do I determine if I have a basis for challenging a will, a beneficiary designation or the transfer of some asset or assets before the passing of the deceased? Alternatively, if someone is challenging a will, or beneficiary designation, or pre-death asset transfer, how do I know how strong a case that person may have?

A: The outcome of each case depends on the particular facts involved, and the facts in every case are different. There are some circumstances which may substantially affect the outcome of your case or, even, be outcome determinative. Those circumstances include:

  • whether the deceased was incompetent because of a mental or physical condition or medication use;
  • whether the change or transfer was the result of the influence of someone on whom the deceased depended;
  • whether the deceased was dependent on the person who benefited from the change or transfer;
  • the age of the decedent or testator;
  • the degree of the dependency of the decedent or testator on another for basic life necessities;
  • if a will or beneficiary designation was changed, whether impartial individuals witnessed the decedent or testator make the change;
  • whether the change in the will, the change in the beneficiary designation or the transfer was made shortly before the death of the decedent or testator; and/or
  • whether the deceased received independent legal advice before making the change, designation or transfer.

Q: If the will I want to challenge contains a provision that states that I will forfeit my rights under the will to receive anything if I challenge it, does that mean that I will lose all of my rights under the will if I challenge the validity of the will or challenge some other aspect of the will?

A: Some wills contain "forfeiture provisions." Such provisions state that a beneficiary who challenges the will, or some aspect of it, loses all of his or her rights under the will. Such provisions are not necessarily valid under Tennessee Law, and it is possible that you can challenge the validity of a will, or some aspect of it, and not forfeit your rights under the will. On the other hand, if a will contains a forfeiture provision, and you challenge it, you may forfeit your rights under the will. Whether a forfeiture clause in a will will be given effect depends on the unique facts of each case. If you are the beneficiary under a will which contains a forfeiture provision, it is imperative that you obtain the advice of a lawyer before you proceed with any legal action challenging the will.

Q: In a dispute between relatives, is it always necessary to file a lawsuit?

A: No. Many will contest cases and beneficiary designation cases can be resolved confidentially and without the need for a lawsuit. In disputes between relatives, it is often desirable and highly effective to use a trained, impartial mediator to help the parties and their attorneys reach a resolution and settlement of the dispute.

Q: In cases involving will contests, beneficiary designations or challenges to the transfer of a decedent's assets, how are attorney's fees paid?

A: In some cases, we agree to represent clients in these types of cases on a contingency fee basis. Under a contingency fee representation arrangement, we agree that we will not receive a fee unless and until money is recovered. Under a contingency fee arrangement, our client does not owe us a fee if no money is recovered. In some cases, we represent clients pursuant to an arrangement where we are paid for our time at a specified hourly rate. In cases where we are defending a claim made against a client or against his or her interest, it is unusual for us to be able to represent the client pursuant to any arrangement other than an hourly pay arrangement since our representation does not include attempting to recover money. In some cases, we represent clients pursuant to a mixed contingency fee and hourly pay arrangement.

Q: Are there time limitations which apply to claims related to wills, beneficiary designations, and undue influence cases?

A: Yes. In Tennessee, and all other states, there are time deadlines, called statutes of limitation, by which a person making a claim must file a lawsuit with a court. If a person who has a claim does not file his or her lawsuit within the required time, his or her claims will, in almost all cases, be forever barred. Different statutes of limitation govern different types of claims and cases. You should seek the advice of an attorney regarding what time limitations and statutes of limitation may apply to your claims. Before you rely on any advice about the deadlines and statutes of limitation applicable to your claims, you should be sure that the advice is in writing and from a lawyer.

Q: If someone who owes me or my company money passes away, can I collect the debt from that person's assets after they have passed away? Do I have to file my claims with a court within a certain time period?

A: Yes and yes. Before you rely on any advice about the time by which your claims against an estate or claims against someone who has passed away must be filed, you should be sure that the advice is in writing and that it is from a qualified lawyer.

Q: How does a court determine who gets what if a will is held to be invalid?

A: If a will is determined to be invalid, a deceased person's property is distributed according to the terms of his or her previous will (assuming the previous will was valid). If the deceased had no previous will, then his or her property is distributed according to Tennessee law which sets forth how the property of someone who dies without a will is to be distributed.

Attorneys J. Ross Pepper and Matthew Brothers handle will contest cases and cases involving beneficiary designations, asset transfers made by deceased persons, claims against estates, and undue influence and fraud cases in Nashville and throughout Tennessee. For an initial consultation with Mr. Pepper or Mr. Brothers, call 615-256-4838.