Nashville Litigation Lawyer

Probate and Probate Litigation

Will Contest TCA §§ 32-4-101 – 32-4-109

(a) 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.

(b)  As used in this section, the term “the appropriate court for trial” means the court elected by the contestant, in the notice of contest, to conduct a trial upon the validity of the Will.

Tenn. Code Ann. § 32-4-101

Factors in Setting Aside a Will

Unsound Mind

Under T.C.A. § 32-1-102 the code dictates that any person of sound mind eighteen  (18) years or older may make a Will. Determining whether or not an individual is of sound mind is of course not a definitive science.  If a testator has a lucid interval when executing the Will, the Court will hold that the testator was of sound mind.

Confidential Relationship and Undue Influence

It is not influence upon a capable mind that is prohibited. It is the undue influence thereof which is the subject of judicial condemnation. Patterson v. Mitchell (1929 M.S.) 9 Tenn.App. 662. For the doctrine of undue influence to be applicable there must be a confidential relationship in existence whereby one party is in a position, because of the confidential relationship, to exercise undue influence over the mind and will of the other. Turner v. Leathers (1950) 191 Tenn. 292.

The proponents of the Will have the initial burden of proving that the Will was duly executed. See In re Estate of Elam, 738 S.W.2d 169, 171 (Tenn. 1987). This may be accomplished using the testimony of living witnesses and by showing that the Will complies with all formalities of law. See In re Estate of King, 760 S.W.2d 208, 210 (Tenn. 1988). Proof of due execution makes out a prima facie case of the will’s validity because it gives rise to a presumption that the testator was capable of making a Will. Curry v. Bridges, 45 Tenn. App. 395, 407, 325 S.W.2d 87, 92 (1959); Needham v. Doyle, 39 Tenn. App. 597, 622, 286 S.W.2d 601, 612 (1955). Accordingly, the burden of proof then shifts to the contestant to prove the will is invalid for some reason. Green v. Higdon, 870 S.W.2d at 520; Taliaferro v. Green, 622 S.W.2d 829, 835 (Tenn. Ct. App. 1981).

The first 48 hours after the death of a family relative are the most hectic. The family is more concerned with planning the funeral, editing the obituaries and notices in newspapers  and getting the family matters in order. In most instances the last thing relatives are thinking about at this point is the Will or the existence of  a Will. The first 48 hours after the death of the close Family member are usually very sad and very emotional.  But at some point, the estate of the decedent must be considered and the sooner this is done the better for the estate in general. If the decedent has executed a Will is imperative that the attorney who executes the Will keeps a copy and ensures that the testator put the Will in an easily discoverable location and alerts the selected executor or executrix of the location of that Will. We want to avoid Family members scrambling through personal property of the decedent trying to find the Will, the Will’s location should already be known. Do they have a Will? Do they have a Trust?  A good attorney must take great care in his/her estate planning and always keep copies of all products he/she developed for the client in a location and knows where to get it.  In addition, the attorney must review the files every few years to make sure that the plan derived by the attorney is still the most effective to meet the clients needs.

Tennessee’s statutory framework provides for the following types of wills:

1. Attested Wills
2. Nuncupative Wills
3. Holographic Will

Attested Wills – Most Ideal

T.C.A. §32-1-104 Will other than holographic or nuncupative – – Signatures governs attested wills under Tennessee law.   The statute specifically states as follows:

(a)  The execution of a will, other than a holographic or nuncupative Will, must be by the signature of the testator and of at least two (2) witnesses as follows:

1. The testator shall signify to the attesting witnesses that the instrument is the testator’s Will and either
   • The testator sign;
   • Acknowledge the testator’s signature already made; or
   • At the testator’s direction and in the testator’s presence have someone else sign the testator’s name; and
   • In any of the above cases the act must be done in the presence of two (2) or more attesting witnesses
2. The attesting witnesses must sign:
   • In the presence of the testator; and
   • In the presence of each other.

(b) (1) For Wills executed prior to July 1, 2016, to the extent necessary for the Will to be validly executed, witness signatures affixed to an affidavit meeting the requirements of § 32-2-110 shall be considered signatures to the Will, provided that:

1. The signatures are made at the same time as the testator signs the Will and are made in accordance with subsection (a); and
2. The affidavit contains language meeting all the requirements of subsection (a).

(2)  If the witnesses signed the affidavit on the same day that the testator signed the Will, it shall be presumed that the witnesses and the testator signed at the same time, unless rebutted by clear and convincing evidence. If, pursuant to this subsection (b), witness signatures on the affidavit are treated as signatures on the will, the affidavit shall not also serve as a self-proving affidavit under § 32-2-110. Nothing in this subsection (b) shall affect, eliminate, or relax the requirement in subsection (a) that the testator sign the Will.

Tenn. Code Ann. § 32-1-104                                   

Nuncaputive Will

(a)  A nuncupative Will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be:

1. Declared to be the testator’s Will by the testator before two (2) disinterested witnesses;
2. Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and
3. Submitted for probate within six (6) months after the death of the testator.

(b)  The nuncupative Will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars ($1,000), except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand dollars ($10,000).

(c)  A nuncupative will neither revokes nor changes an existing written Will.

Tenn. Code Ann. § 32-1-106

Holographic Will

T.C.A. § 32-1-105 governs holographic wills and specifically states as follows:

No witness to a holographic Will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be proved by two (2) witnesses.

Tenn. Code Ann. § 32-1-105

Tennessee Probate Courts still see quite a few holographic Wills that periodically show up in probate. Most holographic wills are done without the assistance of an attorney which leads, in many cases, to unexpected consequences for the estate of the testator. As an attorney if you become aware that a client has a holographic Will, you should at least request to review it to ensure that it would be effective upon presentation to the court. Holographic Wills since they’re drawn up by the testator may not exhibit the formalities required under the law. A simple update to ensure compliance with the statute might save an estate serious heartache upon presentment to the court.

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