When a will is offered for probate, its validity can be challenged for a number of reasons. In Tennessee, grounds for contesting a will include the following:
(1) DEFECTIVE EXECUTION. A will is invalid in the state of Tennessee if it is not executed in strict accordance with the Tennessee Execution of Wills Act (for more information, see the WILLS page).
(2) REVOCATION OF THE WILL BY TESTATOR. A will or any part of a will can be revoked by the testator (a) by the execution of a subsequent will, expressly revoking all or part of the earlier will, (b) by both the subsequent marriage and birth of a child of the testator, or (c) by a subsequently prepared document of revocation executed with all the formalities of a will.
Tennessee law also allows a will to be revoked by an express action. By being “burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator or by another person in the testator’s presence and [at] the testator’s direction," a will can be effectively revoked.
(3) TESTATOR LACKED TESTAMENTARY CAPACITY. In order to execute a valid will, the testator must be at least 18 years old and have the requisite mental capacity to make a will. The testator’s mental capacity is evaluated as of the time the will was made, not at the time of death.
“Mental capacity" requires that the person making the will actually know she is executing a will, that she understands the nature and extent of her property, and knows the names and relationships of those persons who are the “natural objects of her bounty." If the person executing the will failed to meet these requirements, it is possible that the will she executed is invalid.
(4) TESTATOR LACKED TESTAMENTARY INTENT. If it can be shown that a testator did not intend the document in question to be her last will and testament, it will be held as invalid and will be denied probate.
(5) WILL, OR PORTION THEREOF, WAS THE PRODUCT OF UNDUE INFLUENCE. A will, or portion of a will can be invalidated by the court if found to be obtained as a result of undue influence by another person. Cases involving undue influence typically arise where there is a confidential relationship between the person executing the will and a third party beneficiary.
Instances where courts typically invalidate wills as a result of undue influence involve situations where some or all of the following circumstances are present: (a) the third party beneficiary was present at the time the will was made, (b) the third party beneficiary had knowledge of the will’s contents, and/or (c) the third party beneficiary was involved in securing an attorney and/or witnesses for the execution of the will, (d) the third party beneficiary gave an attorney directions as to the contents of the will, and/or (e) the third party beneficiary safeguarded the will after its execution.
(6) WILL, OR PORTION THEREOF, WAS PROCURED BY FRAUD. Tennessee courts recognize two types of fraud as it pertains to wills: (a) Fraud in the execution of a will, and (b) fraud in the inducement of a will.
Fraud in the execution of a will involves situations where a beneficiary tricks the testator into signing a document that is not what it is purported to be. For example, the beneficiary tells the testator that the document she is signing is a contract for sale, when in reality it is a will devising property to that beneficiary.
Fraud in the inducement of a will involves situations where a beneficiary induces a testator to devise property in a certain way based upon false facts or circumstances which the beneficiary has caused the testator to believe. For example, a beneficiary tells the testator that there will be tax advantages if the testator gives title to some property to the beneficiary. In reality there are no tax advantages, but if the belief by the testator that there actually are tax advantages causes her to sign a will, fraud in the inducement has occurred.
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