Contesting a Will in Tennessee Involving a Defective Instrument

In recent posts, we have discussed several important requirements that must be met for a last will to be recognized in Tennessee. In this post, however, we look at how to contest or invalidate a will (or part of a will’s terms). Contesting the validity or construction of a will is often a contentious, but necessary step to ensure a decedent’s estate is administered in accordance with Tennessee law and the decedent’s desires.

In order to contest the validity or construction of a will, the person desiring to contest must have “standing” to sue. In general, a person has standing if they qualify as a potential beneficiary under either the decedent’s current will, any former wills, or as a heir-at-law if the decedent had died without a will.

Once standing is established, there are three ways to contest a will in Tennessee: 1) defective instrument; 2) incompetence; and/or 3) undue influence.

This article focuses on will contests involving defective instruments or ambiguous terms. To execute a valid will in Tennessee, one must be at least 18 years old and have the requisite mental capacity. Furthermore, for a formal will to be valid, the document must be in writing, signed by the testator, and attested by two witnesses all in the presence of each other.

Oftentimes, it is not the validity of a will in question, but rather how the language in a will is to be construed or interpreted. Much litigation concerning defective instruments or bequests involves self-prepared instruments. As stated in § 19 of Pritchard on Wills and Administration of Estates (7th ed., Jack W. Robinson, Sr., et al):

[Will contests] are often the direct result of the ineptitude of those by whom the wills are written. It is so universally understood that no set form is required to be followed that the opinion prevails that anyone can draw a will, and the task is often undertaken by persons who know just enough about legal phraseology to use technical words in improper connections and to confuse the ideas the testator desires to express. 

There is probably no document that requires in its preparation sounder judgement and greater skill on the part of the drafter, or more scrupulous care in the choice of language, so that the instrument may convey clearly to the understanding of the testator his wishes in regard to the disposition of his property, in language that will not admit of a double construction after the testator’s death.

If one or more of the necessary elements of a will are lacking or ambiguous, a will’s validity or interpretation may be subject to contest.

It is important to note that holographic (handwritten) wills are recognizable under Tennessee law and the necessary elements of a valid holographic will vary from the requirements of a formal will. Also, when considering the authenticity of a will, other documents, like a self-proving affidavit, may aid in establishing a will’s validity and authenticity and must be taken into consideration. And while “no-contest” clauses, or what are also called “in terrorem” clauses, are enforceable by Tennessee courts in certain circumstances, such clauses meant to deter litigation generally are not upheld if a will contest is initiated in good faith and with probable cause.

The result of a successful will contest may lead to a decedent’s prior will being admitted for probate. If a valid prior will does not exist, a decedent’s probate assets subject to a defective will usually will be distributed in accordance with Tennessee intestacy law, which more times than not is likely to be inconsistent with a decedent’s desires and objectives.

Will contests and estate disputes are complex, emotional and divisive matters. If you are a beneficiary of a decedent’s trust or estate, you should consult with an experienced Tennessee probate or trust attorney to help ensure that your beneficial rights are protected to the full extent of the law. If you believe your beneficial rights are being violated or overlooked, failure to promptly act may cause a delay in receiving your inheritance or even bar the recovery of your inheritance due to the passage of a statutory time limit.

Likewise, if you are a personal representative or trustee accused of wrongdoing, you should immediately consult with an experienced Tennessee probate or trust attorney to defend yourself and work to resolve the issue. Failure to promptly consult with experienced legal counsel could result in unintended consequences because under Tennessee’s probate and trust laws you can be held personally liable if you, in your capacity as personal representative or trustee, are judged to have breached your fiduciary duty to the beneficiaries.

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