At the outset of a will contest case or undue influence case, clients often ask what to expect in terms of how the case will progress, what will need to be done before trial, and how long it will take to resolve the case.
For starters, let’s talk about the chances that a will contest or undue influence case will make it as far as a trial. The overwhelming majority of civil actions which are filed in Tennessee courts are settled or are resolved by a dispositive motion before a trial becomes necessary. In my experience, undue influence and will contest cases are generally more difficult to have dismissed before trial than many other types of Tennessee cases. As well, they are often not as amenable to settlement, in my experience. So, the chances that a will contest or undue influence case will actually go to trial is somewhat greater than the chances that other types of cases will go to trial. Still, in my experience, most do settle short of a trial.
You are most likely to obtain an expedient settlement and a larger settlement if you retain a lawyer with experience handling will contest and undue influence cases and who opposing counsel knows will prepare your case for trial and try it unless a fair settlement is reached.
Our firm defends and prosecutes Tennessee will contest cases and undue influence cases. For purposes of this blog, I will give a perspective of how such cases progress when we are representing the will contestant or the party challenging a transaction on the basis of undue influence or fraud.
After we are retained, we will perform an investigation prior to preparing a complaint and filing it. The investigation will consist of obtaining what relevant documents we can obtain without a subpoena and taking statements from witnesses. Every case is different. Some require more time to do a pre-filing investigation than others. Only after a lawsuit is filed can we issue subpoenas requiring people and institutions like banks and law firms to produce records or give testimony. That fact limits what information can be obtained before a lawsuit is filed.
After the will contest case or undue influence case is filed, the discovery process begins. The discovery process can be divided into two phases: Written discovery and depositions. The Tennessee Rules of Civil Procedure allow a party to require another party to answer written questions under oath, referred to as interrogatories. They also allow a party to require the opposing party, and third parties, to produce records.
Typically, some of the most important documents to obtain in a will contest or undue influence case are lawyers’ files, bank records, medical records, and correspondence (including emails). I emphasize that every case is different and the documents that might be helpful vary depending on the particular facts of each case. In this day and age where there are so many electronic documents in use, it can be essential to obtain electronic copies of documents which can be forensically examined. It might turn out that the paper copy of a document which bears a date of say, March 16, 2017, is shown by the metadata associated with the electronic copy of that document not even to have been created until months after that date.
Usually after the completion of written discovery, depositions will be taken. Typically, the lawyers take the depositions of the parties first and then proceed to the depositions of witnesses and expert witnesses, if expert witnesses are used.
I find that the filing of motions for summary judgment in will contest and undue influence cases is not that frequent. This is because they usually depend on the resolution of factual disputes and that job is always for the jury. If summary judgment motions are filed, they will be filed and heard before trial.
The next step after the discovery process is complete and after summary judgment motions, if any, are resolved is trial. For a will contest or undue influence case filed in a Tennessee state court, I advise clients not to expect to have a trial for at least a year to a year and a half after the case is filed.