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.
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.
Under Tennessee common law, if a testator intends to revoke a will and completes an act of destruction intended to carry out the revocation, the revocation will stand even if the will was not literally destroyed. For the rule to apply, some force or fraud must have been involved either in preventing the destruction of the will or in the destruction of a document the testator mistakenly believed to be the will. Several Tennessee statutes were subsequently enacted to address additional situations in which revocation may occur through acts of the testator, and in certain circumstances. These include burning, tearing, canceling, obliterating, or destroying the will with the purpose of revoking it by the testator or another person under the direction and in the presence of the testator.
On appeal, the court explained that the Tennessee statutes providing revocations by changes of circumstances did not abrogate the common law principles but instead retained the rules. Consequently, a testator’s attempt to revoke a will would not be defeated if the act was carried out on a piece of paper she believed was her will due to the fraudulent acts of another person. The court concluded that the plaintiff did allege sufficient facts to survive a motion to dismiss. Namely, she alleged that the decedent, with the intent to revoke her 2009 will, had a document destroyed in her presence, which she mistakenly believed to be her 2009 will be based on the trickery of another person.
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