One of the first practical steps that must be taken following the death of a family member or loved one is to locate the decedent’s Last Will and Testament. That Will (along with other estate planning documents) will determine how the decedent’s assets are to be distributed. If the terms of a Will are considerably different that what you expected, or something else about the Will makes you suspicious, you may consider challenging the Will. How do you know, however, that a Will contest is warranted? A Murfreesboro probate attorney at Bennett | Michael | Hornsby discusses some common reasons that may justify pursuing a Will contest.
What Does It Mean to Contest a Will?
A family member, close friend, or legal heir may be unhappy with the terms of a decedent’s Last Will and Testament,
prompting the desire to challenge (“contest” in legal terms) the Will. Contesting a Will, however, requires the contestant to allege legal grounds on which the Will could be declared invalid. Terms that are unfavorable to you in the Will does not give rise to a legitimate basis on which the Will could be declared invalid. To prevail in a Will contest in Tennessee you will need to prove that the Will is invalid because of at least one of the following allowable grounds:
- The Testator lacked the required testamentary capacity at the time the Will was executed
- Someone exerted “undue influence” over the Testator during the drafting and/or execution of the Will
- The Tennessee technical requirements for a Will to be valid are lacking.
What Should I Look for When Contemplating a Will Contest?
The court will begin with the rebuttable presumption that the Will submitted for probate is a valid Will; however. That presumption can be overcome by the person contesting the Will; however, if you decide to move forward with a Will contest the burden will be on you to prove that the Will is not valid. Knowing that, care should be taken when deciding to move forward with a Will contest. There are some common reasons why considering a Will contest is likely a good idea, such as:
- You know or suspect dementia. If you know, or suspect, that the decedent was suffering from Alzheimer’s or another form of dementia at the time a Will was executed, it could indicate that the Testator lacked the requisite capacity to execute the Will. does not, by itself, invalidate a Will. Even a clear Alzheimer’s diagnosis, however, does not always invalidate a Will because the decedent may have had moments of lucidity during the making and execution of the Will that make the Will valid
- Changes to the Will were made at the last minute. While it is not unusual for someone who does not have a Will to decide to execute one after learning they are close to death or facing a terminal illness, changes to an existing Will that occurred close to the Testator’s death can be suspect. They bring into question the Testator’s mental state as well as the possibility of undue influence when the Testator was particularly vulnerable.
- Leaving out a spouse or child without explanation. A Testator has the legal right to disinherit or leave out anyone, including a spouse or child, when creating a Will. Doing so, however, without addressing the missing heir and/or providing an explanation can be suspicious and may indicate lack of mental capacity or undue influence.
- Knowing that someone else had control over the decedent’s finances and/or decisions. If the Testator was under a legal guardianship, or you have reason to believe that someone was unofficially controlling the Testator’s finances and/or making decisions for him/her, it could provide the basis for a claim of undue influence.
- A beneficiary and/or creator of the Will stands to gain from the estate. If the terms of the Will leave significant assets, or a substantial portion of the estate, to the attorney who drafted the Will or to anyone else who was directly involved in the creation of the Will, consider that a red flag. It may indicate undue influence on the Testator at the time the Will was executed.
- Technical issues. Like all states, there are certain statutory or technical requirements for a valid Will. For example, the Will must be signed by the Testator and witnessed by two witnesses. If the Will does not appear to meet the basic requirements for a valid Will, you may be able to successfully challenge the validity of the Will.
Contact a Murfreesboro Probate Attorney
If you have additional questions or concerns about whether to pursue a Will contest with an experienced Murfreesboro probate attorney at Bennett | Michael | Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your free appointment.