Articles Posted in Probate and Trust Litigation

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In a recent opinion in a breach of contract case brought against a Bank by a joint account owner, the Supreme Court of Tennessee overruled two lower courts which had decided in favor of the Bank. For owners of joint bank accounts, often referred to as “joint tenants,” the Court’s opinion lays out some important and basic rules of law related to the rights of joint bank account owners.

Here is a summary of the facts:

  • Mother had three children: Daniel, Paul and Shelby
  • Mother and her Husband owned two accounts at the Bank as joint tenants with rights of survivorship
  • After Husband passed, Mother and Daniel went to the Bank and signed new signature cards for each account
  • The signature cards made Mother and Daniel joint tenants with rights of survivorship as to both accounts
  • After Daniel ceded care of Mother to his two siblings, and without his knowledge or consent, his siblings managed to have a series of new signature cards executed which effectively removed him from ownership of the accounts and from any right to receive the funds in the accounts upon the death of his mother
  • It was undisputed that Daniel did not consent to the signature cards and the resulting removal of him as a co-owner of the accounts
  • As a result of the change of the ownership of the accounts, after Mother passed, the Bank paid the funds in the accounts to Shelby and Paul

Daniel brought suit against the Bank for breach of contract for allowing him to be removed as an owner of the accounts. Both the trial court and the Court of Appeals of Tennessee found in favor of the Bank. Those courts reasoned that, since a joint owner, Mother, during her lifetime, had the right to remove all of the funds from the accounts without the consent of Daniel, the Bank had no liability.

The Supreme Court of Tennessee reversed the appellate court. It did so by applying basic contract law principles. First, the Court pointed out that the Bank had stepped into a contractual relationship with both Mother and Daniel when it allowed them to create accounts as joint tenants with survivorship rights. As it noted, when banks permit parties to open depository accounts, a contractual relationship arises between the banks and account owners.

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The Court of Appeals of Tennessee, in a recently decided will contest case, In re Estate of Ida Lucille Land, made what appears to be some new law on what circumstances can establish a confidential relationship between the person who made the Will and the person or persons alleged to have procured the Will through undue influence.  Here are the basic facts of the case:

  • Ida Land (“Mrs. Land”) died at age 99 in August of 2015
  • At the time of her death, Mrs. Land had no surviving spouse or children, but did have a surviving niece
  • The surviving niece’s name was Ms. Allen
  • In about 1986, Mrs. Land married a Mr. Land, who did have children by a different marriage (“Mr. Land’s Children”)
  • Mr. Land had a sister named Pauline Hill
  • Pauline Hill was married to Kenneth Hill
  • Mr. Land’s Children where, therefore, the Hills’ nieces and nephews
  • Prior to her death, Mrs. Land had expressed to her niece, Ms. Allen, that she did not want Mr. Land’s Children to receive any of her assets
  • There was compelling proof that not only did Mrs. Land and Ms. Allen have a long-standing and loving relationship for many years, but also, that, before Mr. Land’s Children intervened, Ms. Allen, for many years, spent substantial amounts of time caring for Mrs. Land on a regular and unselfish basis
  • Around 2011, Mr. Land’s Children began intervening in the relationship between Ms. Allen and Mrs. Land and were able to keep Ms. Allen away from Mrs. Land for much of the time
  • In May of 2011, Mrs. Land executed the Will which was challenged
  • It was undisputed that the Will was done by a lawyer who had a prior relationship with one of Mr. Land’s Children
  • It was undisputed that Mrs. Hill and Mr. Land’s Children took Mrs. Land to the lawyer who prepared the Will
  • Kenneth Hill was named as Executor of the Will
  • The Will left Mrs. Land’s entire estate to Mr. Land’s Children


At the conclusion of the proof, the trial court instructed the jury to answer three questions:

“1.         Did Judy Allen, by a preponderance of the evidence, prove that there was undue influence arising   from a confidential relationship between Kenneth Hill and Pauline Hill and Mrs. Land?

  1. Did Judy Allen, by a preponderance of the evidence, prove that Kenneth Hill and Pauline Hill unduly profited from the Will?
  2. Did Kenneth Hill and Pauline Hill, by clear and convincing evidence, prove that the transaction was fair?”


The jury answered “yes” to the first two questions and “no” to the third.

On appeal, the Executor argued that the trial court erred by holding that the fact that he was named as Executor created a confidential relationship between himself and Mrs. Land. Under Tennessee law, the finding of a confidential relationship is critical, and, in my experience, frequently outcome determinative.  That is so because, where there is a confidential relationship followed by a transaction which benefits the one standing in a confidential relationship to the one who gave the benefit, the one who is benefitted must then prove, by clear and convincing evidence, that the transaction was fair.  While Tennessee courts speak of a “transaction,” keep in mind that the execution of a Will, and its terms, fall in the category of a “transaction.”

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Just because someone expressly revokes a prior will when they make a new will does not mean that the revoked will can never be effective again. Given, it is rare that a revoked will is revived in Tennessee probate litigation, but it has happened.

In a recently decided probate lawsuit, the Court of Appeals of Tennessee upheld a trial court’s revival of a will which had been expressly revoked. Here are the basic facts:

  • Dad had three adult children (two daughters and a son)
  • Dad had a companion with whom he had lived with in his house for about 30 years named Rebecca Dudley
  • In 2005, Dad executed a will which left real and personal property equally to his three children and in which he granted Ms. Dudley a life estate in his house, vehicle, garage and yard
  • In the 2005 will, Dad’s residuary estate was left solely to his son
  • In 2011, Dad executed a new will
  • The 2011 will expressly revoked all prior wills
  • The 2011 will was just like his 2005 will, except it divided his residuary estate equally among his children
  • Dad died at age 77 at which time he was of sound mind
  • The original of the 2011 will could not be found
  • The original of the 2005 will was found in Dad’s personal file cabinet

After Dad’s death, his children took the position that he had died intestate. If he had died intestate, Ms. Dudley would not be entitled to a life estate in any of Dad’s property. Ms. Dudley took the position that the 2005 will had been revived after it was revoked.  Both the trial court and the appellate court agreed with Ms. Dudley’s position. The appellate court’s opinion is discussed in this blog.

The court pointed out that, under long-standing Tennessee probate law, a revoked will can be revived. In order for a revoked will to be revived, the proponent of the will must show, by a preponderance of the evidence, that the testator intended to revive the revoked will.

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Whether or not a will has or has not been revoked can sometimes be the subject of probate litigation in Tennessee courts. The answer to that question may also determine who receives a substantial amount of money or other property.

There is a Tennessee statute, T.C.A. §32-1-201, which sets forth several methods by which a will, or part of a will, can be revoked. Under that statute, a will, or any part of the will, may be revoked by:

(1)         A subsequent will.  Usually, wills expressly state that they revoke all previous wills. The statute also provides that, even if the will does not expressly revoke a prior will, it does so if it is inconsistent with the prior will.

(2)         A document of revocation which is executed in the same manner as an attested will or a holographic will which expressly revokes the prior will or a part of it.

(3)         If the will is “burned, torn, cancelled, obliterated or destroyed” with the intent to revoke.  This method is effective if done by the testator, or by someone acting for the testator and in his or her presence when the act is performed.

(4)         A marriage of the testator occurring after the will was made and the birth of a child of the testator after the will was made.

The provision allowing a will, or part thereof, to be revoked by being “cancelled” was interpreted by the Court of Appeals of Tennessee in the case of In re Estate of Warren (Tenn. Ct. App 1999).  This is an important case with which any Tennessee probate litigation attorney should be familiar.  Here are the facts: Continue reading →

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At the outset of a will contest case or undue influence case, clients often ask what to expect in terms of how the case will progress, what will need to be done before trial, and how long it will take to resolve the case.

For starters, let’s talk about the chances that a will contest or undue influence case will make it as far as a trial. The overwhelming majority of civil actions which are filed in Tennessee courts are settled or are resolved by a dispositive motion before a trial becomes necessary. In my experience, undue influence and will contest cases are generally more difficult to have dismissed before trial than many other types of Tennessee cases.  As well, they are often not as amenable to settlement, in my experience. So, the chances that a will contest or undue influence case will actually go to trial is somewhat greater than the chances that other types of cases will go to trial. Still, in my experience, most do settle short of a trial.

You are most likely to obtain an expedient settlement and a larger settlement if you retain a lawyer with experience handling will contest and undue influence cases and who opposing counsel knows will prepare your case for trial and try it unless a fair settlement is reached.

Our firm defends and prosecutes Tennessee will contest cases and undue influence cases. For purposes of this blog, I will give a perspective of how such cases progress when we are representing the will contestant or the party challenging a transaction on the basis of undue influence or fraud.

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In a fairly recent Tennessee undue influence case, relatives claiming undue influence by another relative argued that there was undue influence because the provisions of the decedent’s last will were inconsistent with payable on death designations to CDs and bank accounts. That argument was rejected by the trial court and appellate court.  In Frank v. Fields (Tenn. Ct. App. 2017), the Court of Appeals of Tennessee upheld the decision of the trial court that the defendant had rebutted the presumption of undue influence.

Here is a summary of the facts of the case:

  • Ray Frank (“Frank”) had no children of his own, but was survived by two nieces and three nephews
  • One of Frank’s nephews was Fields
  • Fields moved back to Monroe County in 2004 at which time he began to spend quite a bit of time with his elderly uncle, Frank, and to help him quite a bit
  • Fields visited with his uncle about every day and transported him wherever he needed to go
  • The nieces and nephews who brought the undue influence case against Fields admitted that Fields never tried to isolate his uncle from them or to interfere with their relationship with their uncle (in my opinion, in most cases where undue influence has been exerted, there were efforts at isolation)
  • Prior to his death at age 95, Frank was almost blind for several years, and then totally blind
  • Prior to his death, Frank executed a power of attorney in favor of his nephew, Fields
  • In Frank’s last will, made in 2010, two years before he died, he bequeathed 50% of his estate to his two sisters and the remaining 50% to his two nieces and three nephews, which included Fields, to be divided equally among them
  • Prior to his death, Frank made changes to CDs and bank accounts worth at least $450,000 which resulted in Fields receiving those funds after Frank passed away
  • The monies from the CDs and accounts did not pass through the estate so none of the other nieces and nephews received any of those funds
  • Besides the money from the CDs and bank accounts, it does not appear from the opinion that Frank had any other significant assets

Since Fields did not dispute that he had a confidential relationship with Frank, under Tennessee law, a presumption arose that the changes Frank made to his accounts, which resulted in the funds therein passing outside of his will, were the result of the undue influence of Fields.

Besides arguing that Frank was old and blind, and therefore, presumably, did not appreciate his actions, the nieces and nephews challenging the transactions alleged that the undue influence of Fields was proven by Frank’s last will. The last will, they argued, showed that Frank wanted his nieces and nephews to share equally in half of his assets. Since that is what he wanted in his will, they argued, he could not have intended, of his own free will, to leave $450,000 exclusively to Fields.

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In many Tennessee cases involving written contracts, the contracts will contain provisions whereby the parties agreed that the substantive law of a state other than Tennessee would apply in any litigation between them. (In the absence of such a provision, Tennessee follows the rule of lex loci contractus whereby it is presumed that the law of the state where the contract was signed applies).  Since there is substantial similarity between the laws of the States, especially the common law of breach of contract, which State’s law applies may not make a big difference in most cases. It can, however, make a big difference in some cases.

Where the parties have agreed that the law of a particular state will govern any litigation, a Tennessee court will enforce that agreement unless the jurisdiction whose law is chosen does not bear a material connection to the transaction or unless the law of the jurisdiction chosen is contrary to the fundamental policies of Tennessee. This blog focuses on the issue of when a Tennessee court might not enforce a choice of law provision because the law of the state chosen by the parties does not bear a material connection to the transaction.

There is scant published Tennessee case law that addresses this issue. In a 1931 opinion, Manufacturers Finance Co. v. B. L. Johnson & Co., 15 Tenn. App. 236, the Court of Appeals of Tennessee refused to apply the law of Delaware, which the parties had agreed would govern any dispute between them. In that case, the plaintiff was a finance company organized under Delaware law, but which had a principal place of business in Maryland.  The defendant was a Tennessee corporation with a principal place of business in Knoxville.  No part of the disputed transaction touched Delaware.  The court held that it would not apply Delaware law under those circumstances.

In a 2012 breach of contract case, the Tennessee Court of Appeals enforced a contractual provision whereby the law of Kentucky was to govern any litigation between the parties. In that case, the prospective buyer claimed that it was entitled to a refund of an earnest money deposit it had made to purchase land located in Kentucky from the seller. In that case, the buyer was from Tennessee, but the sellers were from Kentucky and the land being sold was in Kentucky.  Under those facts, the court held that there was a material connection between Kentucky and the transaction being litigated.

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In Tennessee will contest cases where wills are challenged on the basis of undue influence, outcomes are often difficult to predict and depend on the unique facts of each case. A recent Tennessee case proves that point. As the Court of Appeals of Tennessee noted when it affirmed the decision of the jury that there was no undue influence, there was evidence in the case to support that the will was the result of undue influence, but there was also evidence to support that it was not.

The proof at trial showed:

  • The maker of the will, a Elizabeth Jones (“Decedent”), was about 93 years old in 2010 when she changed a will she had made in 1985
  • In her 1985 will, the Decedent had left her assets, except for certain real property, to her nieces (who were the parties challenging the 2010 will)
  • In the 1985 will, the Decedent had left the real estate in question to her stepson
  • In her 2010 will, the Decedent left all of her assets to her stepson and disinherited her nieces
  • Stepson began living with the Decedent when he was 5 years old, and then moved next door to her with his wife in 1985
  • Decedent suffered a stroke in 1985, but her doctor testified that she was mentally competent and had no mental deficits from the stroke at the time Decedent executed her 2010 will
  • Stepson admitted that he assisted Decedent by cashing her checks, and taking her to doctors appointments
  • Stepson had a gate installed at Decedent’s house which he claimed he did to keep strangers from coming to her home when she was alone
  • A family friend testified that the Decedent was “always sharp-minded”
  • Another friend of Decedent testified that Decedent’s home smelled of urine and caused her to call the Tennessee Department of Human Services (“Department”)
  • An employee of the Department visited with Decedent and concluded that she was not being neglected
  • Another friend of the Decedent testified that Decedent had expressed to him that she wanted to make a new will and that, thereafter, he helped her obtain the will she executed in 2010 from Legal Zoom
  • The friend who helped Decedent with the 2010 will testified that, although she was frail, Decedent was still competent

The jury determined that there was no undue influence and upheld the validity of the 2010 will. The nieces appealed. The court of appeals affirmed the jury verdict. On the facts of this case, and considering the deference given to jury verdicts on appeal, that outcome was a foregone conclusion, in my opinion.

Setting aside a jury verdict in this will contest case would have required the court of appeals to conclude that there was no material evidence to support the jury’s verdict.

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Spouses, children and parents, or other persons, who may be heirs of each other, sometimes die because of common accidents or disasters. As well, even in the absence of a common disaster or accident, sometimes spouses die within a short time of each other.  When those tragic events or nearly contemporaneous deaths occur, the Tennessee Uniform Simultaneous Death Act may be applicable.

Under the Act, the operative time period is 120 hours, or 5 days. If a spouse dies within 120 hours of his or her wife or husband, then, that spouse is deemed to have predeceased the other spouse for purposes of receiving homestead allowance, year’s support allowance, exempt property, and elective share.  The presumption also applies, importantly, for purposes of determining who the heirs are when the spouse who died first died without a will (when someone dies without a will, his or her property is distributed according to the laws of intestate succession).

Here is an example of how the Act would apply in a situation where the spouse who died first died without a will: Husband and Wife were married late in life and each has a child by another marriage who is not the child of the other spouse. Wife has an investment account worth $300,000 which she, alone, owns. As well, Wife has made no payable on death or survivorship designation on the account. Neither Husband nor Wife has a will.

Husband and Wife are in an accident. Wife dies at the scene of the accident and Husband dies two days later.  If not for the Act, Husband’s child would inherit one-half of Wife’s account, or $150,000. This is so because, under Tennessee intestate succession law, Husband would be entitled to one-half of the $300,000, and Wife’s child would be entitled to the other one-half.

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It happens that marriages occur, but children of one of the marrying spouses are not adopted by the other spouse. It also happens that these children are treated by the non-adopting spouse just like his or her own children despite never being formally adopted.  So, what are the rights of children in such situations to the assets of the man or woman who, for all practical purposes, became their mother or father, when that man or woman who was not their natural parent and who never officially adopted them passes away?

The answer to the above question depends on, at least, several factors. If the deceased non-natural parent died without a will and did not leave any assets via a joint account, payable on death or other account beneficiary designation (non-probate assets), then the never-adopted child is out of luck. Under Tennessee probate law, when a person dies without a will, the only children who may inherit are natural children and adopted children.  That’s it. No exceptions.

If, however, the non-natural parent who died left assets payable on death (non-probate assets) to his or her “children,” it is quite possible that a person the deceased considered and treated like a child, even though that person was never formally adopted, might share in those assets. In the case of In re Estate of Elrod (Tenn. Ct. App. 2015), that very outcome occurred.

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