Probate and Trust Litigation

Tennessee Will Contests: Do I Have a Good Case?

Published on: January 29, 2024 | by J. Ross Pepper

In every initial meeting or phone conference which I have had with a potential client about a will contest case, I inevitably am asked whether the potential client has a good case to set aside the will at issue, or, the other hand, to uphold it in the face of a will contest. Of course, there is never a definitive answer to those questions. However, in some cases, I can tell clients that they have identified facts which seem promising in terms of obtaining a favorable verdict. In other cases, I cannot tell them that.

I always tell potential clients that, even if they have identified facts which would seem to support a verdict to set aside a will, there is no way ever to predict what the verdict in a will contest will be. Nevertheless, even though the outcome of a will contest case in Tennessee is unpredictable, it is always wise to evaluate some critical facts at the outset.

This blog is an informal compendium of a few insights I have had over the years in trying to help clients make as good of an evaluation as circumstances will allow of succeeding in a will contest case. The advice and insights here also apply to cases that are not will contests, but which involve someone obtaining the funds of someone else before that person has passed away. (In many cases, bad actors not only use undue influence, misrepresentations, or other improper means to have a will changed, but also, they use the same tactics to achieve ownership of bank accounts, real estate or to become beneficiaries of life insurance policies or financial accounts.)

Many of the factors that will influence a jury in a will contest are matters of common sense. One question I always ask potential clients is how close a relationship did they have with the deceased? Juries will always pay attention to this factor. Years ago, a man called me because his only sibling, his sister, had been left everything in his father’s will, and he had been excluded. In questioning him, he did not have a bad relationship with his father, and they had had no discernible falling out, but he had not even visited his father in many years. On the other hand, his sister had maintained very steady personal contact with their father. All things being equal, that circumstance, in my estimation, hurt his chances of success in a will contest.

Setting Aside a Default Judgment in Tennessee

Published on: June 20, 2022 | by J. Ross Pepper

A plaintiff may obtain a judgment against a defendant under Tennessee law, and under federal law, if the defendant does not file a responsive pleading within the required time. Under the Tennessee Rules of Civil Procedure, a defendant must file a written response to a complaint within thirty (30) days of being served with the complaint. If you are a defendant against whom a default judgment has been entered, be aware that it can be set aside. With frequency, default judgments are set aside by Tennessee courts.

There are several different grounds on which a default judgment may be set aside. First, if a defendant was not properly served, then a default judgment may be set aside on the grounds that it is void. Service of process on a defendant can be tricky, and, even the validity of personal service by an officer or private process server may be successfully challenged.

Second, a default judgment may be set aside, even where there was valid service on the defendant, if the defendant was not given adequate written notice that the plaintiff had filed a motion for a default judgment. Under the Tennessee Rules of Civil Procedure, in most cases, a defendant is entitled to receive written notice of the motion for default judgment at least five (5) days before the motion is heard.

Third, a default judgment may be set aside for “mistake, inadvertence, surprise, or excusable neglect.” In my experience, these grounds are the ones most frequently used to support a motion to set aside a default judgment. Under Tennessee law, the party moving to set aside a default judgment has the burden to prove that it should be set aside. However, Tennessee appellate courts have said, time and time again, that the law does not favor judgments by default, and, if there is any doubt as to whether one should be set aside, it should be.

Recovering Attorneys’ Fees for the Misuse of a Power of Attorney

Published on: October 25, 2021 | by J. Ross Pepper

Tennessee courts have long followed the “American Rule” when it comes to deciding whether attorneys’ fees should be awarded to the prevailing party in a lawsuit. Under the American Rule, a prevailing party is entitled to an award of attorneys’ fees only under three circumstances. Those are: (1) Where the parties have a contract which contains a term providing for the award of attorneys’ fees; (2) where a statute provides for the award of attorneys’ fees; or (3) where there is some recognized exception to the American Rule which has been established by Tennessee courts.

There are very few recognized exceptions which fall into category three (3) above. Very few. One of those exceptions is where someone has deliberately used a power of attorney to benefit himself or herself. That exception to the American Rule was recently employed by the Court of Appeals of Tennessee in the case of Ellis v. Duggan (2021).

In the Ellis case, a niece had used a power of attorney granted to her by her aunt to pay about $175,000 for a house which was titled in the niece’s name. The large majority of the funds for the purchase were taken from an annuity, the beneficiaries of which were three grandsons of the aunt. The niece was not a beneficiary of the annuity.

The heirs who sued the niece for breach of fiduciary duty for misusing the power of attorney prevailed at trial, but the trial court did not grant their request that they be awarded the attorneys’ fees they had incurred. The trial court refused to make an award of attorneys’ fees, reasoning that such an award was not permissible under the American Rule because there was no “basis in case law” for such an award.

Breach of Contract Actions for Not Making a Will as Agreed

Published on: August 9, 2020 | by J. Ross Pepper

Tennessee recognizes a breach of contract cause of action for the breach of a contract as to how, and to whom, assets will be distributed at the death of the promisor. Most often, these claims arise where spouses have made mutual wills, but where the last deceased spouse has breached this contract by changing the terms of his or her will after his or her spouse predeceased. While breach of contract cases related to wills most often arise in the context of mutual spousal wills, they can also arise in other contexts. For example, in Owens v. Church (Tenn. Ct. App. 1984), a breach of contract claim was successfully prosecuted by a niece and nephew whom were promised their aunt’s estate if they took care of her.

In whatever context a breach of contract case to make a will arises, to be enforceable, such a contract must meet the requirements of T.C.A. §32-3-107. That statute is, essentially, statute of frauds for contracts to make wills. Under the statute, a contract to make a will must be established in one of these three ways to be valid: (1) It must be contained in a will and it must include all material provisions of the contract; (2) the will must contain an express reference to the contract and an express reference to the agreement outside of the will which contains the terms of the contract; or (3) there must be a writing signed by the decedent evidencing the contract. Notably, the last prong of the statute allows for the contract to be created wholly outside of the will and without the will making any mention of the contract.

What statute of limitations apply to a cause of action for breach of a contract to make a will? Three different statutes of limitations may apply. Which one applies will depend upon the way the breach of contract is being challenged. The Supreme Court of Tennessee has recognized that a breach of contract to make a will claim may be presented in three different ways. First, it may be brought as a will contest. If so, the two- year statute of limitations for will contests will apply. (That statute begins running on the date of the entry of the order admitting the will to probate proceedings). Second, it may be brought as a claim against the estate of the deceased. The outside limit for filing a claim against an estate is twelve months from the deceased’s death. Third, the cause of action may be brought as a claim for specific performance. In that event, the six-year statute of limitations applicable to breach of contract actions applies.

Claims for breach of a contract to make a will and bequeath assets to the persons or entities agreed almost always arise after the death of the person who is alleged to have breached the promise. However, they can be brought before that time, if the breach is discovered. For example, in the Owens v. Church case, the niece and nephew who agreed to take care of their aunt for life in exchange for her bequeathing all of her assets to them learned, while she was still alive, that she had changed her will and, then, brought suit against her while she was still alive. Not only was this allowable, but also, the court constructed a remedy for them even before their aunt died.

Old Age Alone Not Enough to Prove Undue Influence or Lack of Mental Capacity

Published on: December 8, 2019 | by J. Ross Pepper

In a recent case involving a challenge to an amendment to a revocable trust, the Court of Appeals of Tennessee upheld the trial court’s grant of a directed verdict to the defendants and against the two sons who had challenged the amendment. The case is significant because it demonstrates that basing a challenge to a will or trust exclusively on the argument that the deceased was of advanced age, and, therefore, must have had reduced mental capacity and increased dependence on others, will not carry the day (as it should not). Although the case was not technically a will contest, the principles and law applied were the same as those applied in will contest cases.

Based on the facts set forth in the opinion in the case, the sons who challenged the trust amendment on the grounds of undue influence and lack of mental capacity must have pretty much expected to prove both just by proving that their father was older and that one of their sisters lived with him. They had no medical proof that would support either that their father was lacking mental capacity, or that he was so physically infirm that he was susceptible to his live-in daughter establishing a dominant relationship over him.

Summary judgments and directed verdicts, both of which were granted by the trial court in this case, are pretty rare in will contest cases where undue influence or lack of testamentary capacity are at issue. That they are makes this case worth analyzing and understanding.

Here are the key facts of the case:

Father had six children comprised of three sons and three daughters
The opinion, remarkably, does not provide Father’s age, though it is clear he was elderly
In 2008, Father executed a will and revocable trust
Father appointed one of his daughters as his personal representative
In 2010, Father executed an amendment to the trust
Although the opinion does not state how Father’s assets were to be distributed under the 2010 amendment, it is clear from the opinion that, under that amendment, two sons were bequeathed less than what was bequeathed to some, or all, of the other siblings
After Father died in 2011, the above two sons (the “Plaintiff Sons”) filed a lawsuit challenging the 2010 amendment on the grounds that Father was unduly influenced to make the amendment and lacked the testamentary capacity to understand the consequences of the amendment

Supreme Court of Tennessee Issues Opinion Related to Joint Bank Accounts

Published on: May 8, 2019 | by J. Ross Pepper

In a recent opinion in a breach of contract case brought against a Bank by a joint account owner, the Supreme Court of Tennessee overruled two lower courts which had decided in favor of the Bank. For owners of joint bank accounts, often referred to as “joint tenants,” the Court’s opinion lays out some important and basic rules of law related to the rights of joint bank account owners.

Here is a summary of the facts:

Mother had three children: Daniel, Paul and Shelby
Mother and her Husband owned two accounts at the Bank as joint tenants with rights of survivorship
After Husband passed, Mother and Daniel went to the Bank and signed new signature cards for each account
The signature cards made Mother and Daniel joint tenants with rights of survivorship as to both accounts
After Daniel ceded care of Mother to his two siblings, and without his knowledge or consent, his siblings managed to have a series of new signature cards executed which effectively removed him from ownership of the accounts and from any right to receive the funds in the accounts upon the death of his mother
It was undisputed that Daniel did not consent to the signature cards and the resulting removal of him as a co-owner of the accounts
As a result of the change of the ownership of the accounts, after Mother passed, the Bank paid the funds in the accounts to Shelby and Paul

Daniel brought suit against the Bank for breach of contract for allowing him to be removed as an owner of the accounts. Both the trial court and the Court of Appeals of Tennessee found in favor of the Bank. Those courts reasoned that, since a joint owner, Mother, during her lifetime, had the right to remove all of the funds from the accounts without the consent of Daniel, the Bank had no liability.

The Supreme Court of Tennessee reversed the appellate court. It did so by applying basic contract law principles. First, the Court pointed out that the Bank had stepped into a contractual relationship with both Mother and Daniel when it allowed them to create accounts as joint tenants with survivorship rights. As it noted, when banks permit parties to open depository accounts, a contractual relationship arises between the banks and account owners.

Significant New Case on Confidential Relationships in Tennessee Will Contest Cases

Published on: September 23, 2018 | by J. Ross Pepper

The Court of Appeals of Tennessee, in a recently decided will contest case, In re Estate of Ida Lucille Land, made what appears to be some new law on what circumstances can establish a confidential relationship between the person who made the Will and the person or persons alleged to have procured the Will through undue influence. Here are the basic facts of the case:

Ida Land (“Mrs. Land”) died at age 99 in August of 2015
At the time of her death, Mrs. Land had no surviving spouse or children, but did have a surviving niece
The surviving niece’s name was Ms. Allen
In about 1986, Mrs. Land married a Mr. Land, who did have children by a different marriage (“Mr. Land’s Children”)
Mr. Land had a sister named Pauline Hill
Pauline Hill was married to Kenneth Hill
Mr. Land’s Children where, therefore, the Hills’ nieces and nephews
Prior to her death, Mrs. Land had expressed to her niece, Ms. Allen, that she did not want Mr. Land’s Children to receive any of her assets
There was compelling proof that not only did Mrs. Land and Ms. Allen have a long-standing and loving relationship for many years, but also, that, before Mr. Land’s Children intervened, Ms. Allen, for many years, spent substantial amounts of time caring for Mrs. Land on a regular and unselfish basis
Around 2011, Mr. Land’s Children began intervening in the relationship between Ms. Allen and Mrs. Land and were able to keep Ms. Allen away from Mrs. Land for much of the time
In May of 2011, Mrs. Land executed the Will which was challenged
It was undisputed that the Will was done by a lawyer who had a prior relationship with one of Mr. Land’s Children
It was undisputed that Mrs. Hill and Mr. Land’s Children took Mrs. Land to the lawyer who prepared the Will
Kenneth Hill was named as Executor of the Will
The Will left Mrs. Land’s entire estate to Mr. Land’s Children

At the conclusion of the proof, the trial court instructed the jury to answer three questions:

“1. Did Judy Allen, by a preponderance of the evidence, prove that there was undue influence arising from a confidential relationship between Kenneth Hill and Pauline Hill and Mrs. Land?

Did Judy Allen, by a preponderance of the evidence, prove that Kenneth Hill and Pauline Hill unduly profited from the Will?
Did Kenneth Hill and Pauline Hill, by clear and convincing evidence, prove that the transaction was fair?”

The jury answered “yes” to the first two questions and “no” to the third.

On appeal, the Executor argued that the trial court erred by holding that the fact that he was named as Executor created a confidential relationship between himself and Mrs. Land. Under Tennessee law, the finding of a confidential relationship is critical, and, in my experience, frequently outcome determinative. That is so because, where there is a confidential relationship followed by a transaction which benefits the one standing in a confidential relationship to the one who gave the benefit, the one who is benefitted must then prove, by clear and convincing evidence, that the transaction was fair. While Tennessee courts speak of a “transaction,” keep in mind that the execution of a Will, and its terms, fall in the category of a “transaction.”

In Tennessee, Revoked Wills Can Be Revived

Published on: June 18, 2018 | by J. Ross Pepper

Just because someone expressly revokes a prior will when they make a new will does not mean that the revoked will can never be effective again. Given, it is rare that a revoked will is revived in Tennessee probate litigation, but it has happened.

In a recently decided probate lawsuit, the Court of Appeals of Tennessee upheld a trial court’s revival of a will which had been expressly revoked. Here are the basic facts:

Dad had three adult children (two daughters and a son)
Dad had a companion with whom he had lived with in his house for about 30 years named Rebecca Dudley
In 2005, Dad executed a will which left real and personal property equally to his three children and in which he granted Ms. Dudley a life estate in his house, vehicle, garage and yard
In the 2005 will, Dad’s residuary estate was left solely to his son
In 2011, Dad executed a new will
The 2011 will expressly revoked all prior wills
The 2011 will was just like his 2005 will, except it divided his residuary estate equally among his children
Dad died at age 77 at which time he was of sound mind
The original of the 2011 will could not be found
The original of the 2005 will was found in Dad’s personal file cabinet

After Dad’s death, his children took the position that he had died intestate. If he had died intestate, Ms. Dudley would not be entitled to a life estate in any of Dad’s property. Ms. Dudley took the position that the 2005 will had been revived after it was revoked. Both the trial court and the appellate court agreed with Ms. Dudley’s position. The appellate court’s opinion is discussed in this blog.

The court pointed out that, under long-standing Tennessee probate law, a revoked will can be revived. In order for a revoked will to be revived, the proponent of the will must show, by a preponderance of the evidence, that the testator intended to revive the revoked will.

What Does It Take to Revoke a Tennessee Will or Part of It?

Published on: April 3, 2018 | by J. Ross Pepper

Whether or not a will has or has not been revoked can sometimes be the subject of probate litigation in Tennessee courts. The answer to that question may also determine who receives a substantial amount of money or other property.

There is a Tennessee statute, T.C.A. §32-1-201, which sets forth several methods by which a will, or part of a will, can be revoked. Under that statute, a will, or any part of the will, may be revoked by:

(1) A subsequent will. Usually, wills expressly state that they revoke all previous wills. The statute also provides that, even if the will does not expressly revoke a prior will, it does so if it is inconsistent with the prior will.

(2) A document of revocation which is executed in the same manner as an attested will or a holographic will which expressly revokes the prior will or a part of it.

(3) If the will is “burned, torn, cancelled, obliterated or destroyed” with the intent to revoke. This method is effective if done by the testator, or by someone acting for the testator and in his or her presence when the act is performed.

(4) A marriage of the testator occurring after the will was made and the birth of a child of the testator after the will was made.

The provision allowing a will, or part thereof, to be revoked by being “cancelled” was interpreted by the Court of Appeals of Tennessee in the case of In re Estate of Warren (Tenn. Ct. App 1999). This is an important case with which any Tennessee probate litigation attorney should be familiar. Here are the facts: Continue reading

Will Contest and Undue Influence Cases in Tennessee: What to Expect

Published on: March 19, 2018 | by J. Ross Pepper

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.