Articles Posted in Probate and Trust Litigation

A review of Tennessee case law, published and unpublished, demonstrates that the affirmative defense of accord and satisfaction is asserted far more often than it is successful.  Nevertheless, it can be effective.  Whether an accord and satisfaction defense is successful is dependent on the unique facts of each case, and, of course, on the reaction of the particular judge or jury to those facts.

The defense is used mostly in commercial litigation, though it pops up in tort cases from time to time in disputes about settlement agreements. Since it is an affirmative defense, the burden of proving it is on the defendant.  As well, whether there has been an accord and satisfaction is a jury question (provided that the defense survives summary judgment).

The defense of accord and satisfaction arises where a party who owes some obligation or debt to another gives something other than, or less than, what the party who is owed the obligation believes it is entitled to receive.  The giving of the something other than, or less than, is the accord part of the defense. The giving part of the defense, or the accord part, is usually a cinch to prove.

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When you are faced with a lawsuit or have filed a lawsuit, do yourself a big favor, hire a Tennessee lawyer with trial experience (aka a “Tennessee trial lawyer”) at the outset of your legal matter.  Having practiced trial law and handled litigation and arbitration matters for nearly 25 years, I have seen people’s cases hurt because they waited to bring in a trial lawyer with the hope that things would just get worked out. I have also seen clients end up with bad results because they never retained a lawyer with trial experience.

I have a friend who is a successful businessman who does a substantial amount of business outside of Tennessee.  He was owed some money from a company in Louisiana, but the Louisiana company denied that he was owed anything.  He hired a lawyer in Louisiana. (I was not aware of his situation until well after the fact).

My friend paid the lawyer for many months as the case proceeded to trial.  My friend thought that his case was one of clear liability, and it sounded to me like it was.  For some reason, although he kept paying his lawyer and waiting for the other side to come to its senses and settle, the other side never made a settlement offer.


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If you are bringing or defending an undue influence case in Tennessee, including a will contest based on undue influence, the presence of a power of attorney may be a game changer for your case.  Why would a power of attorney matter so much in such a case?  Because a power of attorney alone may establish what the law refers to as a “confidential relationship.”

Once it is established that the person who benefitted from the will or other transfer or transaction had a confidential relationship with the maker of the will or transferor of the property, a huge shift takes place — the person who benefitted is presumed to have received the benefit because of undue influence and that person may overcome that presumption only by proving to the jury, by clear and convincing evidence no less, that the making of the will, the transfer, or the transaction was not the result of undue influence.

In Tennessee, if the person who benefitted from the will, the transfer or the transaction was granted an unrestricted power of attorney by the maker of the will or transferor, that fact alone will establish a confidential relationship between the two with one condition.  That one condition is that, before the making of the will or the transfer, the person who was granted the power of attorney must have actually used it.

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In many, if not most, of the cases in which I am involved, I end up explaining to clients what a summary judgment motion is and how a summary judgment might affect their case.  The concept of a summary judgment is a pretty simple thing.  If a summary judgment is entered by the judge, then, barring a reversal of that ruling, the case will never go to trial before a judge or jury.  A summary judgment ends the case.

Summary judgments (and summary judgment motions) fall into two broad categories: (1) Summary judgments (which are entered as the result of motions for summary judgment); and (2) partial summary judgments (which are entered as the result of motions for partial summary judgment).  With some frequency, parties to a lawsuit will file motions for partial summary judgments.  A motion for partial summary judgment requests that the judge end the case just as to some of the claims or causes of action by dismissing them, but not as to all of the claims or causes of action.  For example, if a plaintiff has filed a complaint with three causes of action like breach of contract; fraud; and intentional interference with contract, the defendant may file a motion for partial summary judgment asking the judge to dismiss the fraud and intentional interference claims, but not the breach of contract claim.  If the judge grants the motion for partial summary judgment and dismisses the fraud and intentional interference with contract claims, then only the breach of contract claim will proceed to trial.

It happens frequently that a party will file a motion for summary judgment on all claims, and the court will dismiss only some of the claims.  In my practice, which is typical of most Tennessee trial lawyers with whom I have spoken, summary judgment motions are filed most of the time by defendants seeking to dismiss claims filed against them or some of the claims filed against them.  However, plaintiffs (the parties who file lawsuits) may also file motions for summary judgment. I have been involved in quite a few cases where I represented a plaintiff, filed a motion for summary judgment, and the judge ruled that my client should be granted a summary judgment.

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Last month, I was in the hallway of the Wilson County Courthouse when I was told that the jury had reached a verdict in the will contest case which I and Jeremy Oliver, another lawyer in our firm, had been trying for four days.  During the trial, the jury had heard from eighteen witnesses, including: two treating doctors of the deceased; a caseworker from Adult Protective Services; and, the lawyer who had drafted the Will that my client and I were contesting.

The jury only had to make two decisions: (1) Was the Will the result of undue influence? and (2) was the Will the result of fraud?  If the jury determined that the Will was either the result of undue influence or fraud, it would be set aside (which is what we wanted and for what we had fought for a year and a half).

The trial, I thought, had gone very well for us, but I still wondered if the jury would get it —- that, as I had told the jury in my opening statement, this was a case about two greedy people who had isolated, lied to and manipulated a dying 87 year old woman in order to get her to change her Will to leave all of her assets to them.  The jury did get. The jurors found that the Will in question was the result of both undue influence and fraud.

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What if the person who made a will misunderstood facts that existed at the time the will was made?  What if the person had been lied to at the time he or she made the will?  In Tennessee, a will may be set aside for mistake or for fraud.  There is limited case law in Tennessee dealing with the subjects of mistake and fraud in the making of wills, but what we do have is enough to provide lawyers who handle will contest cases with the basic rules that will apply in will contest cases involving fraud and mistake.

It is very difficult to set aside a will in Tennessee on the grounds that the maker of the will was mistaken about some fact when he or she made the will.  Two Tennessee will contest cases illustrate that point well.

In Anderson v. Anderson, a 1967 decision of the Supreme Court of Tennessee, the father and the maker of the will (the “testator”) had a wife and two sons.  In the will, the father left a 35 acre farm to one of his sons.  It was not disputed that, at the time he made the will, the father mistakenly believed that he could leave the farm to his son.  The father, however, owned the farm as tenants by the entireties with his wife.  That being the case, when the father died, the 35 acre farm passed to his wife and could not be inherited by the son to whom he had bequeathed it in his will.

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The law of undue influence in Tennessee can be quite a bit to try to get one’s head around considering the numerous different factual situations in which undue influence cases arise and considering the numerous “suspicious circumstances” that Tennessee courts have instructed judges and juries to use in making their decisions. In addition to those considerations, there are other layers to any undue influence case whether the case involves a will contest, irrevocable trust, change of beneficiary or joint account. Those layers include the determination of whether a confidential relationship was present and whether the defendant rebutted the presumption of undue influence (if the presumption applied).

For Tennessee lawyers who handle undue influence cases and will contests (or clients involved in such cases), the case of In Re Estate of Schisler, a 2009 published opinion of the Court of Appeals of Tennessee, is a good place to start in trying to understand how Tennessee undue influence law works. In that case, two children of the deceased (“Defendant Children”) were sued by their four siblings. When she was about 79 years old, the mother of all of the children (“Mother”) moved from Maryland, where she had lived on a farm and raised all of her children, to Tennessee. Mother moved to Tennessee because her health was deteriorating. In Tennessee, she eventually moved in with one of the Defendant Children, a daughter.

In November of 2005, and about 10 months after having suffered a mini-stroke, Mother went with one of her daughters (one of the Defendant Children), with whom she was living in Tennessee, to a lawyer in Tennessee. On November 15, 2005, Mother returned to the lawyer’s office in Tennessee with the same daughter and made a new will. In the new will, Mother left only her one-fifth interest in a parcel of property she owned to all six children. Mother bequeathed the remainder of her assets to the two Defendant Children.

After Mother passed away in 2006, the other children of Mother filed a will contest in which they alleged that the new will which was done in 2005 was invalid because it was obtained as the result of the undue influence of the Defendant Children. The jury found that there was a confidential relationship between Defendant Children and that the new will was the result of the undue influence of Defendant Children. Defendant Children appealed and argued that the jury’s verdict should be set aside.

Under Tennessee law, the Court of Appeals could only reverse the verdict of the jury if no material evidence in the record supported the verdict. The court found that there was material evidence to support the jury’s verdict. As to the daughter who was a defendant, the court noted that Mother depended upon her to feed her, to care for her, to house her and to transport her. (If those facts are established in any Tennessee will contest case, I doubt that any judge or jury would not find the existence of a confidential relationship).

The proof of a confidential relationship between the son, who was one of the two Defendant Children, and Mother was much less compelling. That son do not live with, care for, or transport Mother. In fact, he remained in Maryland on the family farm. So, how was it that the court of appeals affirmed the jury’s verdict that he also had a confidential relationship with Mother? It opined that the proof showed that Mother was financially dependent on that son. How so? That son and Mother had, since 1982, had a joint account into which all of Mother’s social security benefits and income from the family farm were deposited. The son’s financial control of that account was enough evidence to support the jury’s determination that the son had a confidential relationship with Mother.

As for the jury’s decision that there had been undue influence, the appeals court affirmed it because a number of the suspicious circumstances were present including: (1) there was material evidence that Mother’s mental and physical health had deteriorated; (2) both Defendant Children had played a role in procuring the new will; (3) both of Defendant Children accompanied mother to the office of a lawyer in Maryland prior to the execution of the new will in 2005 at which time Mother made changes to her estate plan which benefitted Defendant Children; and (4) both Defendant Children benefitted from the new will.

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Whether you are involved with a breach of contract case, will dispute case, real estate case or any type of commercial litigation case in a Tennessee court, you can help yourself by knowing a little about the basic rules of evidence that apply in Tennessee state court cases. In my experience, many clients assume that some piece of evidence will be admissible at trial when it will not be admissible.

The Tennessee Rules of Evidence act like a filter. While there may be all kinds of statements and documents related to a dispute, the odds are that some, even many of those statements and documents, will not be admissible at trial. They get “filtered” from the courtroom by the Tennessee Rules of Evidence. Here are a few basic rules of evidence in Tennessee of which it would behoove any party to have at least passing knowledge.

FIRST-HAND KNOWLEDGE: In order to be allowed to testify about a matter, a witness must have first-hand knowledge of the matter. Let’s assume there is a breach of contract case in Tennessee in which Defendant contracted to provide computer programmers to Plaintiff for work on a project which was the subject of a separate contract between Plaintiff and its client (“Client”). The programmers worked on-site with Client and directly under Client’s supervision. The programmers, according to Client, did not have adequate experience or skills and performed inadequately. Because of that, Client cancelled the contract between it and Plaintiff which resulted in Plaintiff losing substantial profits.

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If you hire a will contest lawyer in Tennessee to defend a will which has been offered for probate and which is being challenged as invalid, or if you hire a lawyer to try to invalidate a will which has been offered for probate, will the attorneys’ fees of your attorney be your individual responsibility? Or can they be paid, or reimbursed to you, from the assets of the deceased (from the estate)? If you successfully defend a will contest, is the non-prevailing party who challenged the will required to reimburse you or the estate for the fees incurred to defend the will?

The answer to the later question is straightforward: One who is unsuccessful in a will contest action cannot, except in limited and unlikely circumstances, be required to pay the prevailing party’s attorneys’ fees. The answers to the former two questions are a little less straightforward.

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In probate litigation in Tennessee, disputes sometimes center on what the person who made the will (the “testator” or “testatrix”) meant in the will. Such litigation can fairly easily be avoided by careful will drafting. Nevertheless, wills are sometimes not sufficiently precise or are susceptible to different interpretations–particularly wills drafted by non-lawyers.

The Court of Appeals of Tennessee recently issued an opinion in a case involving a holographic (handwritten) will which was phrased such that it was unclear who the testator meant to make the beneficiaries of his will. The case provides a helpful summary of the basic Tennessee law that applies when a court is confronted with a will which can be interpreted in more than one way.

A husband (“Husband”) drafted his own will. In the will, he stated that all of his property was to be left to his wife’s daughter “to be divided as she sees fit among kids. . . .” The wife’s daughter had several children. Husband passed away and his handwritten will was admitted to probate.

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