When there is an issue with a will, the beneficiaries likely have questions about their rights to the estate and what legal action they can take to ensure their deceased loved ones’ wishes are met.
We know how complicated the probate process can be; that’s why we’ve created a will contest FAQs list to help you navigate the legal system.
1. Are forfeiture provisions legal?
Sometimes, the will creator (testator) will create what is known as in terrorem clauses, or no-contest or forfeiture clauses, that are meant to stop beneficiaries from contesting the will by means of disinheritance or reducing the beneficiaries’ share to a nominal amount.
Though legal, there are loopholes to their validity, especially if the beneficiaries believe that one of the following cases has occurred, resulting in the creation of the no-contest clause:
Lack of testamentary capacity
Irregularities in the execution of the document(s)
2. Do I need to file a lawsuit if the issue with the will is between two relatives or does mediation work?
In some will contest cases, the issues may not be of a legal nature, but more of a family dispute. In those cases, it is not always necessary to file a lawsuit to contest the will. Rather, you and your family members can seek mediation to decide how best to handle the situation within the will.
3. What makes a will invalid?
In Tennessee, a will is invalid if:
The will was improperly created,
There was a lack of testamentary capacity, or
Undue influence was present.
In addition, Tennessee only recognizes wills that are signed by the testator and two witnesses of proper age and mental capability.
4. How much time do I have to contest a will?
In Tennessee, if a beneficiary wants to contest a will, the case must be filed within two years of the date of the order admitting the will to probate. However, waiting for two years can jeopardize your case, so it’s best to speak to a probate attorney right away.
5. Does illness impact testamentary capacity?
Illness can impact testamentary capacity in many cases. Most recently, families have battled the mental impact that a COVID-19 diagnosis can have on a loved one. In cases where expert testimony such as doctors or skilled nursing home care facilities can show that the individual’s health was failing, thus impacting their testamentary capacity or not, these cases may not be difficult.
However, if you cannot physically be with a loved one, lack of testamentary capacity can be harder to prove.
6. Who can contest a will?
In Tennessee, a person related to the testator, or someone who was supposed to receive a portion of the testator’s estate, can contest a will–even though this does not necessarily mean their claim will be successful.
7. What happens if the original will is lost?
It is typically required that an original will be submitted to the court when an estate is opened. However, if the original will is lost or has been destroyed, an interested party can contest the copy of the will. It is important to know that lost will cases are highly complicated and very fact-specific, so having an experienced probate attorney on your side is critical.
Nashville Wills Contest Lawyers: TN Will Contest FAQs
If you are questioning the validity of a loved one’s will, you’ll need legal counsel you can trust. For decades, the Tennessee wills contest lawyers at Martin Heller Potempa & Sheppard, PLLC have been helping clients throughout Nashville, Springfield, and Middle Tennessee with their estate planning needs. We are prepared to help you through this difficult time. Contact us today for more information.