For most people, a Last Will and Testament serves as the foundation for their initial estate plan. If you executed a Will, that Will may be intended to distribute your entire estate after your death. If so, you need the terms of that Will to hold up if challenged. A Murfreesboro probate lawyer at Bennett, Michael & Hornsby explains what happens if someone contests your Will and what you may be able to do to prevent that from happening.
Probating a Will
The legal process that typically follows the death of an individual is referred to as “probate” and is intended to serve several functions, including the authentication of a Last Will and Testament submitted for probate. Anyone in possession of an original Will should give that Will to the Executor of the estate and/or submit it to the appropriate court to begin the probate process. If a challenge to the Will’s validity is to occur, it will happen during the probate of the Will.
Preliminary Considerations in a Will Contest
Although the law does recognize challenges to the validity of a Will, there are limitations imposed on when, who and how a Will can be contested. In Tennessee, the statute of limitations (time frame within which legal action must be initiated) for a will contest is two years of the date of the order admitting the Will to probate. In addition, only certain people have “standing” to contest a Will. “Standing” is a legal term that refers to a party’s right to be involved in litigation. In the case of a Will contest, the plaintiff (party initiating the Will contest) must be an “interested” party, meaning they stand to gain from the estate. Typically, this means that the plaintiff must be a beneficiary under the Will admitted to probate or under a previous Will, a legal heir, or sometimes a creditor of the estate.
Why Might My Will Be Invalidated?
It is important to understand that a Will contest challenges the legality of the Will submitted for probate. It is not an opportunity for an unhappy heir to complain about his/her inheritance. As such, the plaintiff in a Will contest must allege (and ultimately prove to be successful) one of the following legal grounds on which a Will can be declared invalid in Tennessee:
- Improper execution
- Lack of capacity
- Undue influence
What Happens during a Will Contest?
If someone contests your Will, and the court determines that the challenge meets the basic statutory requirements (time, standing, grounds), the contest will proceed in much the same way as other civil litigation. The Executor of your estate will be responsible for defending the Will submitted for probate (with the assistance of a probate lawyer). Both sides will conduct discovery and likely try to negotiate a settlement. If a settlement is not possible, the case will proceed to trial. If the plaintiff’s challenge is successful, the Will submitted for probate will be declared invalid. At that time, the court would look for another valid Will to use to probate the estate. If none exists, the estate will be probated as an intestate estate using the Tennessee laws of intestate succession to distribute estate assets. If the contestant is not successful, the Will is authenticated, and the estate assets are distributed according to the terms of the Will.
How Can I Prevent My Will from Being Contested?
While there is no sure fire way to prevent your Will from being contested, working with an experienced probate lawyer during the drafting and executing of your Last Will and Testament ensures that your Will has the best possible chance of standing up to a challenge, should one occur.
Contact a Murfreesboro Probate Lawyer
If you have additional questions or concerns about contesting a Will in Tennessee, or if you are ready to get started creating your Last Will and Testament, consult with an experienced Murfreesboro probate lawyer at Bennett, Michael & Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your appointment.
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