Articles Posted in Estate Litigation

In some situations, the existence of multiple wills can lead to confusion or even litigation after the death of the testator.  In a March 21, 2018 opinion, the Court of Appeals reviewed a will contest action arising out of a Tennessee estate dispute involving two wills.  The plaintiff in the case was the decedent’s daughter.  She filed an action challenging one of the wills that disinherited her and her sisters.campfire

In 1991, the decedent executed a Last Will and Testament, providing the majority of her estate to her husband and, should he predecease her, the remainder to her children.  In 2009, the decedent executed a second will, in which she explicitly revoked all former wills.  In the 2009 will, the decedent left the bulk of her estate to her husband and the remainder to a charity, and she disinherited all of her children.  The decedent’s husband passed away before her death in 2013.

The plaintiff filed a petition to probate the 1991 will and was named the executor of the decedent’s estate.  Shortly thereafter, the charity named in the decedent’s later will filed a petition to probate the 2009 will.  The plaintiff challenged the 2009 will, alleging that the decedent had instructed another person to destroy the 2009 will in her presence and indeed believed that it had been destroyed, therefore rendering the decedent intestate or making the 1991 will effective.  The circuit court dismissed the will contest for failure to state a claim.

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The executor of a will is responsible for settling the decedent’s financial affairs and distributing the assets, among other duties.  Disagreements may arise if the beneficiaries do not agree with the decisions of the executor.  In some situations, the dispute is litigated in probate court, where a judge can order the appropriate action, as illustrated in a March 22, 2018 Tennessee estate case.gavel

In the case, a deceased father had bequeathed an annuity to each of his two daughters in his will, with the residual of the estate to be transferred in a trust, of which the income would be paid to his wife.  However, according to the final settlement submitted by the executors of his estate, the net amount to be distributed from the probate estate was approximately $8,700.  Since that amount was not enough to purchase and fund the beneficiaries’ $75,000 and $50,000 annuities, the executors sought to divide only the $8,700 between them.  The beneficiaries filed an objection, requesting the court to order the sale of a portion of the decedent’s real property, which was valued at over $3 million, in an amount sufficient to fund their annuities.  The probate court agreed, and the executors appealed the matter.

In Tennessee, when a testator bequests property to beneficiaries, known as legacies, without indicating the source from which they are to be paid, and then disposes of the rest of the estate in a mass residuary clause, the legacies are considered a charge on the residuary.  An executor may utilize a decedent’s real property if the personal property is insufficient to pay for the decedent’s obligations.  Furthermore, the probate court has jurisdiction to sell a decedent’s real property.

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Establishing a trust may be advantageous for Tennessee estate planning purposes in some situations.  However, it is important to understand the limitations of revocable living trusts.  In a February 13, 2018 case, the Tennessee Court of Appeals considered a challenge filed by the beneficiary of a living trust against a trustee for exceeding her authority under the terms of the trust agreement.pen

The defendant in the case and her husband had executed a removable living trust agreement.  They conveyed approximately 200 acres of real property to the trust.  Upon the death of the husband, the trust was the sole residual beneficiary of his will.  The defendant, as the successor trustee, distributed all of the real estate in the trust to herself by way of a quitclaim deed.  She then terminated the trust.  Her son, who was a beneficiary of the trust, filed an action alleging that she had exceeded her authority under the trust.  He requested an accounting of the trust’s assets and sought the return of any wrongfully distributed assets.

In Tennessee, trusts are interpreted by looking at the language, context, purpose, and scope of the trust agreement to determine the grantor’s intent.  In addition, a trust must be interpreted in order not to frustrate the intent of the grantor.

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In some estate cases, disagreements may arise as to whether an asset is part of the estate to be distributed to the beneficiaries, or whether it is marital property belonging to the surviving spouse.  A previous blog post from 2016 highlighted this issue in a Tennessee estate litigation case before the Tennessee Court of Appeals.  The dispute centered around the ownership of a certificate of deposit that the decedent had purchased with funds from a joint checking account with his wife.  Since that post, the decision has been appealed and reviewed by the Supreme Court of Tennessee.  In a December 6, 2017 opinion, the court ultimately reversed the appeals court and overruled prior case law on the issue.writing check

During the administration of the decedent’s estate, his surviving wife filed a petition to designate a certificate of deposit, titled in the sole name of the decedent, as her separate marital property rather than part of the decedent’s estate, which had been left to his children of a prior marriage.  The decedent purchased the certificate of deposit with funds he withdrew from his and his wife’s joint bank account, designated with a right of survivorship.  The Court of Appeals ruled that the certificate of deposit belonged to the surviving spouse because the funds could be traced back to the joint account.

In Tennessee, a tenancy by the entirety is a form of property ownership unique to married persons.  Each spouse holds an interest in the entire property, rather than in undivided parts. Upon the death of one spouse, the survivor continues to own the whole property.  In most cases, one spouse cannot alone terminate the tenancy by transferring part of it to another party without the consent of the other spouse because it would destroy the other spouse’s ownership interest in the whole.  However, bank accounts are treated differently, and portions of a joint bank account may be unilaterally withdrawn without destroying the tenancy.

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An individual generally has the right to decide how his or her estate should be distributed.  In cases in which the decedent’s will is a product of undue influence, however, the court may set aside the will as invalid.  In a December 28, 2017 case, the Court of Appeals of Tennessee addressed the issue of undue influence in a challenge to the decedent’s handwritten will filed by her son.diary

The relationship between the decedent and her son had become strained after a disagreement just three months before her death, and they stopped speaking.  Prior to their disagreement, the son regularly visited his mother and spoke with her on the phone.  Around the time of their falling out in June 2015, the decedent hired a housekeeper.  The housekeeper also assisted the decedent by running errands, caring for her pets, buying groceries, cashing checks for her, and keeping her company.

In August 2015, the decedent was diagnosed with cancer.  She did not tell her son that she was ill.  The decedent asked the housekeeper if she would stay at her house until she died because she did not want to be alone.  In September, she contacted an estate attorney and requested that he draft a will leaving everything to her housekeeper because she did not want her son to have anything of hers.  Before the attorney had time to prepare the will, the decedent took a turn for the worse.  The attorney advised her to write a handwritten will, which she did in front of her nurse.  Shortly thereafter, the decedent passed away, and her will was submitted to probate.  The son filed a petition to set aside the will, arguing that it was invalid because the decedent did not have the capacity to make her will, and the housekeeper exerted undue influence over her.

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During the administration of an estate in Tennessee, the decedent’s last will and testament, if there is one, will be submitted into probate.  An objection to the validity of the will is known as a will contest, and it may be brought by someone with legal standing.  In a November 22, 2017 Tennessee estate planning case, the issue before the Supreme Court of Tennessee was whether five of the decedent’s children, who were disinherited in two wills executed by the decedent, had standing to bring a will contest. The trial court dismissed the action for lack of standing, and the Court of Appeals affirmed.  The matter was then appealed to the Supreme Court of Tennessee.pens

The 2013 Will submitted into probate disinherited five of the decedent’s seven children.  Multiple prior wills also disinherited some or all of those five.  The disinherited children brought a will contest, alleging that the 2013 Will was invalid due to improper execution or attestation, lack of testamentary capacity, and fraud or undue influence.

In Tennessee, standing is a threshold issue in a will contest, and a contestant must show that he or she would be entitled to share in the decedent’s estate if the will were set aside, or if no will existed.  On appeal, the court noted that the contestants would clearly have standing if only the 2013 Will were at issue.  The question, however, was whether the contestants lacked standing because the 2013 Will and preceding wills disinherited them, based on the holdings of Tennessee cases Cowan v. Walker and Jennings v. Bridgeford.

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The executor of an estate owes fiduciary duties to the beneficiaries and may be held responsible for failing to carry out these duties reasonably. The Court of Appeals of Tennessee addressed this type of dispute in a October 11, 2017 case. The decedent’s two sons were the sole beneficiaries of their mother’s estate. One of the sons was named as the executor in the mother’s will. The beneficiary-son filed a petition alleging that the executor-son breached his fiduciary duty. When the Probate Court found there was no breach of duty, the beneficiary appealed.gavel

In order to recover damages for a breach of fiduciary duty, the plaintiff must establish:  (1) a fiduciary relationship, (2) a breach of the resulting fiduciary duty, and (3) an injury to the plaintiff or a benefit to the defendant as a result of that breach. In Tennessee, the executor of an estate has a duty to deal with the beneficiaries in utmost good faith and exercise the same degree of diligence and caution that a reasonably prudent person would exercise in the management of their own affairs. If the executor acts reasonably and in good faith, he is shielded from liability if, in light of subsequent events, his judgment turned out to be wrong.

One of the specific duties, among others, of an executor is to collect the estate’s assets within a reasonable time, timely discharge his statutory obligations, and distribute the estate and close its administration as quickly as possible. The beneficiary first alleged that the executor breached his fiduciary duty by failing to make any monetary distributions until more than five years after the estate was opened.

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Changes to the law can have a significant effect on the way an estate is administered. In a recent Tennessee estate litigation case involving a will contest, the Court of Appeals determined whether a 2016 amendment to the Tennessee Execution of Wills Act applied to a will that was executed prior to the effective date of the statute. The beneficiary of the decedent’s will argued that it was valid under the new law, while the decedent’s heir-at-law, her father, contended that it was invalid because it did not meet the requirements under the law in effect at the time of her death in 2015. pen

The decedent in the case executed her Last Will and Testament in June 2015. She signed the bottom of each of the three pages of her will in the presence of two witnesses, and the witnesses signed the attestation affidavit in the presence of the decedent, each other, and a notary public. However, the witnesses failed to sign the will itself. The decedent passed away in September 2015.

In April 2016, Tennessee enacted an amendment providing that wills executed prior to July 1, 2016 are validly executed if the witness signatures are affixed to an affidavit, provided that the signatures are made contemporaneously with the testator’s signature, and the affidavit contains language meeting the requirements of the law. On appeal, the court found that the language of the amendment was straightforward and unambiguous, and it clearly was intended to provide relief for testators like the decedent, who believed they had executed a valid will prior to July 1, 2016, when the two witnesses duly executed the attestation affidavit at the same time as the will was executed by the testator, but the witnesses failed to sign the will itself.

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Some issues brought up in Tennessee estate cases may seem unusual but are common enough that a skilled Tennessee estate litigation attorney will know how to approach them.  For example, in a September 28, 2017 case, family members of the decedent could not find her original will, although they knew she had executed it.  They filed a petition seeking to recognize and establish a copy of the lost will as the decedent’s last will and testament.  The trial court granted the petition, and the decedent’s heirs appealed.farm

The plaintiffs in the case were the decedent’s nephews by marriage.  They had assisted the decedent and her husband in maintaining their farm before their deaths.  When the decedent’s husband died in 2007, the plaintiffs visited the decedent every day, prepared her meals, and alternated spending nights with her because she didn’t want to be alone.  In 2007, the decedent executed a last will and testament bequeathing her personal property to her sister, her jewelry to her nieces, and the remainder of her estate, which included the farm and machinery, to the plaintiffs.  The will was last seen in 2012 when the decedent showed it to her sister and returned it to the safe in her home, but it could not be found after her death.

In Tennessee, the long-standing presumption is that if a will is traced into the hands of the testator and not found after her death, the testator canceled or revoked it.  The presumption can be overcome with adequate proof, which Tennessee courts have defined as clear and convincing evidence.  Proponents of the lost will can overcome the presumption of revocation by showing that the testator did not have control of the will after its execution, that she had lost testamentary capacity for a period before her death, and that the will was in existence at the time the mental alienation occurred.

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A last will and testament is generally valid if it meets certain statutory requirements.  In an August 15, 2017 Tennessee estate case, the son of the decedent contested the validity of the will submitted into probate for his father.  The affidavit attached to the purported will was signed, in the presence of the testator, by two witnesses.  After a hearing, the trial court held that the will and accompanying affidavit were not in strict compliance with the statute and denied admission of the will to probate.  The proponent of the will, the decedent’s wife, appealed that decision to the Court of Appeals of Tennessee.signature sticker

In Tennessee, a will must be signed by the testator and at least two witnesses.  The testator must signify to the witnesses that it is his will and either sign the will, acknowledge that he already signed the will, or have someone else sign his name while in the testator’s presence.  The witnesses must then sign in the presence of the testator and each other.

In 2016, the Tennessee legislature amended the law to allow for a separate affidavit containing the witnesses’ signatures to be integrated into a will executed prior to July 1, 2016, as long as the signatures were made at the same time as the testator signed the will.  If the witnesses signed the affidavit on the same day as the testator, it is presumed that they signed at the same time, unless there is convincing evidence otherwise.

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