The decision to contest a will is not an easy step to take. However, to ensure your loved one’s actual wishes are carried out, a will contest sometimes may be necessary, and making sure you have appropriate legal guidance is vital. The estate planning attorneys at Martin Heller Potempa & Sheppard PLLC assist people in Nashville and the surrounding area who believe that a loved one’s purported will is invalid. We can help you pursue legal action to determine what is right and fight back against undue influence or other improper actions.The Process of Contesting a Will
In Tennessee, a legal action filed to contest a will must be pursued within two years from the time the instrument was approved for probate. Some exceptions exist for this timeline, such as if someone is under 18 years old or of unsound mind when the will enters probate. The statutory time limitation may also be extended if a will is subsequently found that was written or executed after the will entered probate. There are three common grounds for contesting a will:
- Improper Execution: For a will to be properly executed, the testator must be over 18 years old and of sound mind. A will must also be in writing and signed by the testator. Two witnesses must sign the document in the presence of the testator for a will to be valid.
- Lack of Capacity: A will may be challenged if the testator was not of sound mind at the time of execution. To prove lack of capacity, it must be shown that the testator did not know and understand what he or she was doing. Factors considered to determine if a testator lacked capacity include physical weakness, age, ailing mind, and memory loss.
- Undue Influence: Wills may be found invalid if they were executed due to another’s undue influence or fraud. To establish undue influence, it must be shown that a confidential relationship existed between the testator and the individual accused of exercising the influence.
To contest a will, a party must have standing to do so. Thus, only parties with an interest in the outcome or who may benefit from the outcome of the proceedings may pursue an action.
Some wills have “forfeiture clauses,” which state that if a beneficiary contests a will, he or she loses any rights granted under the will. However, these clauses are not always deemed valid, and therefore a beneficiary may still retain rights under a will despite a challenge. The validity of such provisions is determined on a case-by-case basis, which is why careful consideration should be given when deciding whether to challenge a will. Seeking sound legal advice before pursuing such action may be vital to ensuring your rights are protected.
If a will is found to be invalid, property may be distributed based on a previous existing valid will. If no previous will exists, the decedent’s property will be distributed pursuant to the rules set out under Tennessee probate law, which provides criteria for asset distribution among a surviving spouse, children, and other relatives.Contact a Nashville Attorney for Advice on Probate Litigation
Residents of Nashville who believe that a loved one’s will may be invalid can consult the probate litigation lawyers at Martin Heller Potempa & Sheppard PLLC. We also counsel individuals in West Meade, Franklin, Charlotte, and throughout Davidson and Williamson Counties. If you need legal assistance to contest a will, contact us online or call us at 615-800-7096.