A will contest can fracture relationships and involve significant attorney fees. However, if you are contesting a will with good reason, obtaining the inheritance which should be rightfully yours is enough of a reason to proceed -- with caution. If you succeed in the will contest, and the invalidated will was a second or subsequent will, then the earlier will -- if valid -- will be enforced. If there was no other will, Tennessee’s intestate laws, which apply in the event that a person dies without a will, designate the estate distribution.
Time to File
Before a will contest can proceed in Tennessee, the action must be filed within a required time. In Tennessee, the time limit to contest a will is two years from the time the will is approved for probate, with an exception for someone who was under the age of eighteen or of unsound mind at the time the will was entered for probate. In some cases the two-year rule may also be waived if a new will, written after the first will, is discovered. For all others, if the will contest is not brought within the two year time frame, the action will not proceed.
Not just anyone can contest a will. To file a will contest in Tennessee you must have what is called "standing." This means that you would, in some way, be affected by the terms of the will in question; for example, if you would be disinherited altogether by the current will. Without proper standing, you cannot contest a will.
Three common grounds for a will contest are improper execution, lack of capacity and undue influence. In Tennessee, anyone over the age of eighteen and of sound mind may make a will - known as the testator - as long as the will is in writing and signed by the testator and two witnesses. For the will to be properly executed, witnesses must have signed the will in the presence of the testator.
Alleging that someone lacked the capacity to make a will can be a subjective standard, but nonetheless there are ways to prove it. The court will consider the testator’s physical health condition at the time the will was executed as well as the person’s age and possibly the testator’s clarity of mind.
When undue influence is claimed, this means that someone is pointing the finger at someone else, who is believed to have steered the testator to write the will in a certain way, usually unduly benefiting that person. If undue influence is proven, either the entire will or the portion of the will in dispute may be invalidated.
Once the case reaches court, a few technical issues may come into play. Sometimes the attorney who drafted the will may be asked to take the stand and testify as to the specific issues discussed with the testator -- his client -- during the drafting process. Although this may invoke concerns about an attorney/client privilege, the attorney will typically be allowed to say his piece. Also, many wills contain provisions specifically stating that anyone who challenges the will is subject to forfeiture of their designated benefits. The enforcement of these forfeiture clauses is very much dependent on the specific facts of each case.
- Wills, Trusts, and Estates; Jesse Dukeminier, et.al.
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