Probate and estate administration can be challenging to bring to a settlement when there are particular claims involved. In order to contest a will in the state of Tennessee, you must first establish standing by showing you are a potential beneficiary of your deceased family member’s estate.
If you do demonstrate standing, three options are available for contesting the will: incompetence, defective instrument, and undue influence. The latter – undue influence – pertains to our question of whether we can challenge a will if a sibling persuaded our parent to leave us out of the will.
Types of suspicious circumstances leading to a change in the will
Even though there may be an obvious benefit available under the terms of the last will, the circumstances under which the will was developed must also be evaluated for undue influence. Particular evidence must be available to persuade a court of the presence of this influence. There are various types of suspicious circumstances that can point to undue influence.
The contester of the will may point to the presence of duress or fraud. Fraud may include any inducement or execution of a will resulting from an individual deceiving or misrepresenting something to cause the now decedent to initiate action or make a bequest he or she may not otherwise have made. Duress occurs when a testator is pressured into making a will through the threat of a wrongful act or actual performance.
Undue influence from a sibling to parent
Plaintiffs must generally prove that suspicious circumstances existed in order to prove undue influence. Part of this involves demonstrating the decedent did not act independently and freely. Some examples of suspicious circumstances may include:
- The decedent’s mental or physical deterioration
- Existence of a confidential relationship between the defendant and the decedent
- Lack of independent advice or secrecy concerning the will
- The active involvement of the defendant in procuring the will
- Duress or fraud
- The unnatural or unjust nature of the terms of the will
- Any other circumstances that point to undue influence
A presumption of undue influence exists under Tennessee law when the decedent provides a benefit to dominant party in a confidential relationship. If a presumption of undue influence comes to the surface, the defendant must establish that the transaction under evaluation was fair by convincing and clear evidence to refute the presumption.
How do I know if my challenge to a will based on undue influence will be successful?
The facts in each case are different and the outcome in a particular case will depend on these facts. The circumstances that can affect the outcome or even determine the outcome of your challenge include:
- Whether the deceased depended on the person who received benefit from the transfer or change in the will
- Whether the deceased was incompetent due to a physical or mental state or from the use of medication
- The level of dependency of the testator or decedent on others for basic life necessities
- The age of the testator or descendent
- Whether the change to the beneficiary designation, the modification to the will, or the transfer was conducted shortly before the death of the testator or decedent
- Whether the change in the will or transfer of assets was revealed to others or kept confidential
- If the beneficiary designation or will was changed, whether any impartial individuals witnessed the testator or decedent make the modifications
- Whether the deceased individual obtained independent legal counsel prior to the beneficiary designation change, modification to the will, or transfer
A will can be invalid for various reasons. If you feel you have been left out of the will of a loved one unjustly, our Chattanooga probate litigation attorneys at Wagner & Wagner can evaluate your case and pursue recovery of your rightful portion of the will. To arrange a free consultation about the situation you are facing, call us today at 423.454.3387 or complete our contact form. We serve clients in Chattanooga, Cleveland, and throughout Tennessee.