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.
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.
The Court of Appeals of Tennessee ultimately found that it was highly probable that the decedent did not revoke her 2007 will and ruled that it should be established as a lost will. The court pointed to testimony from her long-time attorney, who confirmed that the decedent was consistent in her intent to pass the farm to the plaintiffs so that it would stay in her husband’s family. The court also concluded that the evidence supported a finding that the decedent lacked testamentary capacity during the three-year period between the last known sighting of the lost will and her death, therefore negating her ability to have intentionally revoked her will. Accordingly, with a copy of the 2007 will be admitted into probate, the decedent’s estate was to be distributed as provided in the will, instead of through intestate succession.
At the Nashville law firm of Martin Heller Potempa & Sheppard, our estate litigation attorneys have significant experience handling probate matters, will contest actions, and other disputes arising out of estate administration. If you require assistance with a trusts or estates issue, contact our office by phone at (615) 800-7096 or online to arrange a free consultation with one of our skilled attorneys.