Will Contests: Frequently Asked Questions
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: 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: 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.