How to Contest Wills in Tennessee

In Tennessee, an individual must contest a will within two years of the date the will is admitted to probate court. This time period is extended for a person who was under the age of 18 when the will was filed, or in the event that a new will was discovered.

The person contesting a will must show that they would receive a portion of the estate if the will were to be set aside. An individual who would have inherited if the testator had not made a will may have the right to contest the will.

The person who died is called the decedent. If the decedent executed or made a will, they are called the testator. A person who dies without having executed a will is said to have died intestate.

An individual or entity, like a nonprofit organization, that inherits under a will is a beneficiary. An individual who would inherit if the decedent died intestate without a will is an heir. A person or entity that contests a will in probate court becomes a plaintiff; Tennessee law refers to this person as a contestant.

Valid grounds that allow a beneficiary to contest the will include:

• ‌Improper execution:‌ An action that caused the will to take effect was not done properly. For example, the testator may not have signed the will or the will was not witnessed correctly. In Tennessee, the will must be signed by the testator and two witnesses who are not beneficiaries. A holographic, or handwritten, will is legal in Tennessee if the signature and all material provisions of the will (what property is distributed and to whom) are in the testator’s handwriting. The testator’s handwriting must be proved by two witnesses.

• ‌Lack of testamentary capacity:‌ The testator did not understand something critical about their will when they drafted and signed it. They lacked mental capacity at the time of execution if they did not understand the nature and extent of the property they transferred, their relationship to the beneficiaries, or the purpose or effect of their will. A will remains valid if the testator came to lack capacity after they signed it. For example, if the testator was not of sound mind because they suffered dementia a year after executing the will, the will would still be valid.

• ‌Undue influence:‌ The testator was pressured or manipulated by a party into leaving property to them in their will. For example, if a relative who regularly bought an elderly testator groceries said they would stop buying them food unless the testator included them in their will, the relative would have exerted undue influence on the testator.

• ‌Forgery or fraud:‌ A person engaged in fraudulent behavior to get the testator to execute their will. For example, if a beneficiary told the testator they were signing a contract for roof repair, but the document was in fact a will, the beneficiary engaged in fraud.

When a person files a will contest, the court decides whether their claim is valid. It can invalidate a section of the will or the entire will. If there was a valid will that was drafted and executed prior to the invalidated will, that document will take effect.

A will contest may be tried by a jury. If the case relied on a copy of the original will, the copy will be sent to the court to be recorded. The certificate, copy, verdict and judgment will have the same effect as if the original paper writing were in existence.

A beneficiary can get a copy of a testator’s last will after the will has been admitted to probate. A will becomes public record when the probate court opens the case. A probate case typically stays open for between four and nine months.

A plaintiff can introduce different types of evidence to contest a will, including personal testimony – formal or written statements given in court – documents, photographs and video. The evidence must convince the court to rule in their favor. In some instances, the original will may have been lost or misplaced so it cannot be produced at trial.

If the will has been copied into the pleadings or submitted to the minutes of the court, the court may proceed with the trial as if the original will were in existence and in place before the court.

The cost to contest a will includes:

• Fee to file petition in probate court. This fee varies by county. The fee is $18 in Shelby County, where Memphis is located and in Davidson County, where Nashville is located.

• Bond in the amount of $500, which the court requires the plaintiff to pay in case the lawsuit fails.

• Fee for consulting an attorney or law firm that specializes in estate planning or probate litigation. The attorney’s fee depends on the specifics of the case, including how much work is involved. Hourly rates for an estates and trusts attorney in Tennessee usually range between $250 and $500.

If the plaintiff does not have adequate resources to pay the filing fee and bond for the will contest, they can complete an application to file “in forma pauperis.”

If the court finds them to be without sufficient resources, the plaintiff will not have to pay the fee to file the petition to contest the will or the bond, but they will have to pay for an attorney to represent them or provide services as a consultant if they choose.

When a plaintiff contests a will that contains a "no-contest" clause, and the court rules that the will is valid, they can lose whatever they would have received under the will as a penalty for contesting it.

This type of clause is also called a “forfeiture” or “in terrorem” clause. It is inserted into the will to prevent beneficiaries from contesting the terms of the will, in part and as a whole.

A no-contest clause can cause a beneficiary to lose all of their inheritance or see their share reduced to a small amount. A plaintiff who acts in good faith and with probable cause to contest the will may do so without the no-contest clause taking effect.

After a plaintiff contests a will, the court will determine whether the plaintiff acted in good faith and with probable cause.