9th Jun 2016

Last Will and Testament

“Brother against brother,” a “fight to the finish.”  “There will be weeping and gnashing of teeth.”  The same could be used to describe the proceedings had on a will contest.  In such matters, families come apart, fueled by jealousy and greed, bygones flare up once more, and old wounds are found gaping.  One senior lawyer summed it up like this: “A will contest is worse than a contested divorce.”

The statute allows one to contest the validity of a will by the authority of Tenn. Code Ann. § 32-4-101:

If the validity of any last will or testament, written or nuncupative, is contested, then the court having probate jurisdiction over that last will or testament must enter an order sustaining or denying the contestant’s right to contest the will. If the right to contest the will is sustained, then the court must: (1) Require the contestant to enter into bond, with surety, in the penal sum of five hundred dollars ($500), payable to the executor mentioned in the will, conditioned for the faithful prosecution of the suit, and in case of failure in the suit, to pay all costs that may accrue on the suit; and (2) Cause a certificate of the contest and the original will to be filed with the appropriate court for trial.

Standing to make such a contest is vested in one who would inherit from the decedent if the same had died intestate (see Winters v. American Trust Co., 14 S.W.2d 740, 744 (Tenn. 1929)), with the applicable statute of limitations being two years from the time of entering the will to probate.  Tenn. Code Ann. § 32-4-108.  Both the circuit and chancery courts have jurisdictions over will contests.  Tenn. Code Ann. § 32-4-109.

The issue in every will contest will certainly be devisavit vel non, which simply begs the question: “Is there a will or not?”  Invariably, the issues attending such an inquiry are the testamentary capacity of a testator, and whether fraud or undue influence has entered into the subject will’s execution.

When examining such matters, one finds that most often it is family members and close friends that wield these poisonous instruments the most.  There is a plethora of opinions from our state appellate Courts setting forth the standard by which the concepts governing the proper formation of a will are gauged.

Undue influence may be presumed in the presence of a confidential relationship between a testator and a beneficiary under the testator’s will.  “A confidential relationship has been defined in general terms as any relationship which gives one person dominion and control over another.”  Gabriel v. Hubbs, et al., 2002 Tenn. App. LEXIS 913, *10-11 (Tenn. Ct. App. Dec. 23, 2002).  The burden of proving such a confidential relationship is on the opponent of the will.  Id. at *11.

Once a confidential relationship is established between the testator and a beneficiary, any benefit inuring unto such beneficiary may suggest undue influence.  Id.  However, if there is “clear and convincing evidence that the (suspect) transaction was fair,” such presumption may be rebutted.  Id.  The strongest evidence in this regard lies in the securing by the testator, prior to the transaction, of “proper independent advice. . . conferring fully and privately upon the subject of his intended gift” with some impartial person who could advise the testator of the consequences of his gift.  Id. at 12.  (see also Pendola, et al. v. Butler, 2003 Tenn. App. LEXIS 535, *13-14 (Tenn. Ct. App. Nov. 11, 2003)).

Coupled with undue influence in any will contest, there will almost always be questions raised as to the testator’s mental state at the time of his will’s execution.  “The law fixes the standard mental capacity and requires that a testator’s mind at the time the will was executed, must be sufficiently sound to enable him to know and understand the force and consequence of his act.”  Stephenson v. Stephenson, 2003 Tenn. App. LEXIS 255, *7 (Tenn. Ct. App. March 27, 2003).

Furthermore, “in determining testamentary capacity, the mental condition of the testator at the very time of executing the will is the only point of inquiry; but evidence of mental condition both before and after making the will, if not too remote in point of time, may be received as bearing upon that question.”  Id. at *8.

A survey of any state’s case law will reveal contests arising from wills executed while the testator is under heavy medication, confined to his bed, or after a suggestion or diagnosis of dementia or terminal illness.  Most courts will not jump to any conclusions of fraud or undue influence merely because the testator suffers with one of these conditions.  Tennessee, like most other states in our region, requires the proof as discussed above.

The hallmark of the Tennessee Courts’ analysis of any will contest is cut and dry: “the cardinal rule for interpreting and construing a will is to ascertain the intent of the testator and to give effect to that intent unless prohibited by law or public policy. Furthermore, such intention is to be gathered from the scope and tenor of the whole will.”  In Re: Estate of Keith, 2003 Tenn. App. LEXIS 518, *6-7 (Tenn. Ct. App. July 28, 2003).

In any will contest the object is to realize and secure the delivery of the testator’s true intent.  The Court will seek to ensure that the testator has been heard, and that no one else has spoken for him.

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