Will Contest / Probate Litigation

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 or trust, you should retain an experienced trial lawyer (not just a "probate lawyer" or "estate planning lawyer"). Attorney Ross Pepper has nearly 25 years of experience as a Tennessee trial lawyer and has successfully handled will contest cases, undue influence cases and cases involving other probate matters or trusts, in trial courts and before the Court of Appeals of Tennessee (e.g. In Re: Estate of Linda A. Farmer, Davidson County Circuit Court, affirmed on appeal by Court of Appeals of Tennessee).

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. When a will, or trust document, is challenged on this basis, such a challenge may be referred to as a challenge on grounds of competency or testamentary capacity. A will may also be challenged on the basis that its execution was procured through fraud or undue influence. A legal action or lawsuits where a will is challenged is referred to as "will contest."

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 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 will contest cases where a will is challenged on the basis of undue influence, once a "confidential relationship" has been shown between the decedent and the party who allegedly exercised the undue influence, a significant legal shift takes place. If a person is determined to have had a confidential relationship with the decedent, that person must essentially prove, by "clear and convincing evidence," that the will was not the result of undue influence. 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 (inter vivos) asset transfers.

It is possible to prove the existence of a confidential relationship in more than one way. Under Tennessee law, a person to whom the testator gave an unrestricted power of attorney prior to the execution of the will being challenged will generally be held to have had a confidential relationship with the testator so long as that person, in fact, used the power of attorney before the will was executed. Alternatively, even where the testator did not give a power of attorney to anyone, a confidential relationship may be established by proving that a person had a dominant relationship over the testator or by proving that the testator placed trust and confidence in the person.

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 will contest cases?

A: Yes. In Tennessee, a person challenging a will must file a lawsuit with a court. If a person does not file his or her will contest lawsuit within the time required by the statute of limitations, in almost all cases, his or her will contest lawsuit will be forever barred. In Tennessee, the statute of limitations for will contest cases requires that a will contest case be filed within two years of the date of the order admitting the will to probate. Even though the statute of limitations allows two years for the filing of a will contest case, it is often best to file one as soon as possible in order to ensure the preservation of evidence and witness testimony. 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 who you have retained as the above statements are general rules and are not meant to be assurances as to your particular case.

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. Generally, under Tennessee law, the longest period anyone has to file a claim against the estate of a deceased person for money owed to them is twelve (12) months from the date of the person’s death. That deadline may be even shorter in many circumstances. For more information about deadlines for filing claims against the estate of a deceased person see: “Claims Against Estates: Deadlines for Filing in Tennessee.” 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 who you have retained as the above statements are general rules and are not meant to be assurances as to your particular case.

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. Under Tennessee law, where a person dies without a will, his or her assets are distributed to that person’s spouse if there are no surviving children. If a spouse and a child survive the deceased, the spouse and child each receive half of the assets. If a spouse and two children survive, then the spouse and two children each receive one-third of the assets. If a spouse and more than two children survive, then the spouse receives one-third of the assets and the children receive an equal share of the remaining assets. If no spouse and no children survive, then the parents of the deceased share the assets equally unless there is just one surviving parent in which event that parent receives all of the assets. If there are no surviving parents, and all of the siblings of the deceased person survive him or her, then those siblings share equally in the assets of the deceased. If there are no surviving children, spouse or parents and one or more of the siblings of the deceased have died, then the children of the sibling or siblings who have died share equally, along with the surviving siblings, in the assets of the deceased. Before any assets of the deceased person who dies without a will can be distributed, any debts of the deceased, as well as charges associated with the administration of the estate, must be paid.