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What Happens When Another Relative Has Filed the Will Contest Case?

In any Tennessee will contest case, there may be a number of relatives of the deceased who will benefit from the will contest case if the Will at issue is set aside.  There might also be non-relative beneficiaries of a previous Will who will benefit if the Will is set aside.  In such circumstances, who has the right to file the will contest case? In such circumstances, do relatives or beneficiaries who have not filed the will contest case have a right to join the case? Should the other relatives or beneficiaries join the will contest case as parties?

For answers to the above questions, let’s use a hypothetical and assume these facts:

  • Mother dies leaving six children
  • One of the children is Sister Susan
  • All of her life, Mother made it clear that she wanted her children to receive her assets in equal shares
  • Just before her death, when she was weak and dependent on Sister Susan, Mother executed a Will which bequeathed most all of her assets to Sister Susan
  • Mother had never executed any other Will

Following Mother’s death, Sister Susan offers the Will for probate.  Right after, Brother Bill, one of the six children of Mother, hires a will contest lawyer and files a will contest case based on incompetency and undue influence.

Under Tennessee law, none of the other siblings is required to join the will contest case filed by Brother Bill. Under Tennessee law, they can if they want to do so, but should they? Whether they should or should not depends on the circumstances of each case.

Here is my recommendation: If all of the siblings trust Brother Bill; are confident that he has hired a solid lawyer with experience handling will contests; and, are sure that Brother Bill will consult with them and protect their interests in any settlement discussion, then there is probably no need for them to retain their own lawyer or lawyers and to join the will contest as named parties.

If, on the other hand, any one of the above circumstances is not present, the other relatives or heirs should retain their own attorney or attorneys.  This is so for several reasons.

First, there can never be two will contests for the same Will. So, if Brother Bill or his lawyer screw up the will contest case, none of the other siblings may file a second. They are stuck with the result obtained by Brother Bill.

Second, as long as Brother Bill acts in good faith, he can settle the will contest on terms that are binding on all of the other relatives and beneficiaries who would benefit if Mother’s Will was set aside.

In Tennessee, there is no requirement, as there is in the majority of states, that all interested parties (heirs), be notified of the institution of a will contest. So, what if Brother Bill files the will contest case, then settles it on terms which are favorable to him, but which terms leave one or more of his siblings out of any settlement?  Based on a couple of Tennessee cases which discuss the fact that the contestant, Brother Bill in this case, may settle a will contest, but only if he or she does so in good faith, there is a pretty good chance that the other siblings have some relief.

In Petty v. Call, the Supreme Court of Tennessee held that relatives who would have benefited from a will contest if the Will was set aside were entitled to go forward with a lawsuit against the relatives who had filed the will contest, and accepted a settlement without informing the relatives who had brought the lawsuit. In that case, the relatives who had been left out of the settlement alleged that the relatives who had filed the will contest knew how to contact them, but never did.  That was sufficient, the court held, to establish that the settlement might not have been in good faith.

In a more recent will contest case, In re Estate of McCartt, a relative who had not been informed of a settlement in a will contest case was held to have a viable claim for fraud against the other relatives who filed the case. In that case, there was evidence that the relatives who settled the will contest were fully aware of the existence of the other relative and her right to receive assets of the deceased if the will contest was successful, but did not inform her of the settlement discussions or the settlement.

Lastly, any heir or beneficiary who stands to benefit if a Will is set aside may initiate a will contest case. So, any of Brother Bill’s four other siblings could have filed the will contest case.