Tennessee Business Litigation Lawyers Blog
In every initial meeting or phone conference which I have had with a potential client about a will contest case, I inevitably am asked whether the potential client has a good case to set aside the will at issue, or, the other hand, to uphold it in the face of a will contest. Of course, there is never a definitive answer to those questions. However, in some cases, I can tell clients that they have identified facts which seem promising in terms of obtaining a favorable verdict. In other cases, I cannot tell them that.
I always tell potential clients that, even if they have identified facts which would seem to support a verdict to set aside a will, there is no way ever to predict what the verdict in a will contest will be. Nevertheless, even though the outcome of a will contest case in Tennessee is unpredictable, it is always wise to evaluate some critical facts at the outset.
This blog is an informal compendium of a few insights I have had over the years in trying to help clients make as good of an evaluation as circumstances will allow of succeeding in a will contest case. The advice and insights here also apply to cases that are not will contests, but which involve someone obtaining the funds of someone else before that person has passed away. (In many cases, bad actors not only use undue influence, misrepresentations, or other improper means to have a will changed, but also, they use the same tactics to achieve ownership of bank accounts, real estate or to become beneficiaries of life insurance policies or financial accounts.)
Many of the factors that will influence a jury in a will contest are matters of common sense. One question I always ask potential clients is how close a relationship did they have with the deceased? Juries will always pay attention to this factor. Years ago, a man called me because his only sibling, his sister, had been left everything in his father’s will, and he had been excluded. In questioning him, he did not have a bad relationship with his father, and they had had no discernible falling out, but he had not even visited his father in many years. On the other hand, his sister had maintained very steady personal contact with their father. All things being equal, that circumstance, in my estimation, hurt his chances of success in a will contest.
Another question I ask is what were the circumstances surrounding the making of the will at issue? In many cases, it is obvious that the person who benefits from the will at issue played a substantial role in retaining the lawyer who drafted it and who oversaw its execution by the testator and witnesses. I also want to know what were the terms of any prior will and how long was that will in effect before the new will was made? In some cases, there does not appear to be any reason that the terms of a will which had been in place for many years before the death of the person who made it were changed, other than because of the improper influence of someone else.
Another question that I usually ask is how old and dependent was the deceased on others at the time the will at issue was made? In that line of questioning, in my experience, two very important facts are whether the person was able to live alone and to drive themselves at the time the will at issue was made. Of course, if the deceased was suffering from some mental condition, like dementia, that fact can be hugely important. Dementia and loss of mental acuity, even if diagnosed by a physician, standing alone, however, may not necessarily establish that someone was not mentally competent enough to make a will. Tennessee courts have recognized that persons with diminished mental capacity can still have periods of mental lucidity sufficient for them to have been aware of the consequences of their action in executing a will. Keep in mind that, even where the evidence of diminished mental capacity may not be enough to prove that the will should be set aside for lack of mental capacity, that evidence can still be probative of undue influence. Tennessee cases have recognized, rightfully so, that persons with diminished mental capacity are more susceptible to improper influence from others than persons without such conditions.
It has been my experience that, where someone knows of a few facts supporting that someone else has used fraud or undue influence to have a will changed, once a will contest is initiated and the discovery process begins, more facts that establish undue influence or fraud will be discovered. Very frequently, people who embark on a course of trying to have a will changed improperly misstep, act carelessly, or otherwise fail to cover their tracks. You should consult with a qualified Tennessee will contest attorney before you reach any conclusions about the strength or weakness of your case.