Avoiding Will Contests in Tennessee
Lawyers often say tongue-in-cheek that the first thing they teach you in law school is “anyone can sue anyone for anything.” While there may be some truth to this statement, there are certain techniques a careful estate-planning attorney can employ to reduce the possibility of a will or trust contest.
Meet alone with your attorney. When disinheriting (or not providing equally for) a natural heir you run the risk of the disinherited heir alleging the will or trust was procured as a result of undue influence by the principal beneficiary.
Most disgruntled heirs attacking a will on the grounds of undue influence attempt to prove the existence of suspicious circumstances which would conclude that the person executing the will did not act independently. This oftentimes is done by showing how active the principal beneficiary assisted in helping procure the will or trust instrument.
For example, a court will look at whether the decedent used the principal beneficiary’s attorney? Did the decedent or principal beneficiary call the attorney to set up the appointment? Did the principal beneficiary drive the decedent to the attorney’s office? Did the principal beneficiary sit in on the attorney meetings? Was the principal beneficiary copied on attorney correspondences and involved in reviewing draft documents? And so on and so forth.
To combat a future undue influence argument, if possible it is wise to fully exclude or limit the involvement of a principal beneficiary in the estate planning process.
Get a doctor’s note. In addition to undue influence, conveyances at death are also contested on the basis of capacity. In determining whether a person was either unduly influenced or incapacitated (or both) Tennessee courts often look to the physical and mental condition of the decedent when the estate planning documents were procured.
When disinheriting or providing unequally for natural heirs, as an added layer of protection it may be advisable to obtain a contemporaneous examination and written report from a regularly attending physician which opines as the person’s perceived ability to comprehend and execute estate-planning documents.
Get a second opinion from an attorney. In Tennessee, another way of proving undue influence is to show a confidential relationship existed with the principal beneficiary. In the 2012 case In re: The Estate of Bessie Louise Thornton the Tennessee Court of Appeals summarizes a “confidential relationship” in a footnote as follows:
In general, a confidential relationship is any relationship which gives a person dominion and control over another. Kelly, 558 S.W.2d at 848. It is not merely a relationship of mutual trust and confidence, rather a confidential relationship is one where confidence is placed by one in the other and the recipient of that confidence is the dominant personality, with ability, because of that confidence, to exercise dominion and control over the weaker or dominated party. Childress, 74 S.W.3d at 328.
In the Thornton case the Tennessee Court of Appeals goes on further to say:
In Tennessee, where there is a “confidential relationship, followed by a transaction wherein the dominant party receives a benefit from the other party, a presumption of undue influence arises, that may be rebutted only by clear and convincing evidence of the fairness of the transaction by clear and convincing evidence.” Matlock, 902 S.W.2d at 386; see also 3 Mitchell, 779 S.W.2d at 389…
One means of showing a transaction’s fairness is for the dominant party to establish, by clear and convincing evidence, that the weaker party received independent advice before consummating the transaction that benefitted the dominant party. See Hogan v. Cooper, 619 S.W.2d 516, 519 (Tenn. 1981).
So how do you show you received independent advice? You seek advice from a second, independent attorney who is experienced in estate and trusts matters. Yes, seeking a second opinion can be costly on the front end but it may prove to save your family significant sums of money in having to defend a will or trust when you are gone.
Use a trust. Assets held in trust, provided the trust instrument is properly drafted and funded, avoid passing through probate. One potential problem in opening a probate estate is that it gives a disgruntled heir a forum with little to no initial out-of-pocket costs to file a claim or contest the will.
In the alternative, while a trust in Tennessee can in most cases be contested in court just as a will can, if a disgruntled heir wants to challenge the validity of a trust instrument they must bear the burden of filing the trust suit with the court. This costs money in terms of filing fees and attorney’s fee.
For fear of being led on a never-ending fishing expedition with no results, many attorneys, including myself, are cautious in accepting trust contest cases on a contingency fee basis. Unless a prospective client has evidence that undue influence is probable and sufficient trust assets are available, they likely will have to pay up front to initiate trust litigation.
Make mention of the disinherited, but nothing more. It may be wise to mention in your will or trust a natural heir you are disinheriting. This shows that your decision in doing so is intentional.
Some attorneys advise leaving a disinherited heir a token bequest under your will or trust. This, however, is oftentimes not a prudent course of action in Tennessee because named beneficiaries of a will or trust –regardless of how small or large their share is – often have certain statutory rights they may exercise to permit them greater participation in the court proceedings.
Include a “no-contest” provision. No-contest language – or what is formally called an in terrorem clause – is a provision in a testamentary instrument such as a will or trust which provides for the disinheritance of an heir if they challenge the validity of the instrument. No-contest provisions are generally enforceable by Tennessee courts under certain circumstances.
Set expectations. An old, common adage in the legal profession is that “possession is 9/10 of the law.” In the estate-planning field, however, we like to say that “expectations are 9/10 of the law.”
Litigation usually takes place when at least one party involved experiences unexpected or unanticipated results – especially when the party is unpleasantly shocked by the outcome of a once seemingly predicable event or occurrence.
One way to set realistic expectations on the front end is to convey your estate-planning decisions to any disinherited natural heirs. They may not like what you have to tell them and it may be an uncomfortable conversation for all people involved, including yourself, but by setting their expectations low on the front end you may just avoid the potential for additional family strife on the back end.
Rob Hazard is an attorney and CPA with GSRM. Rob offers families and individuals comprehensive estate planning solutions that are tailored to their particular needs and goals. GSRM attorneys regularly appear in probate court in contested and uncontested cases involving estates, conservatorships and trusts. If you are seeking legal or other professional advice, we encourage you to reach out directly to us – after you have fully read and understand our disclaimer.