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Contesting a Will or Trust in Tennessee

If you’ve been named as a beneficiary in a will or trust and are considering challenging its validity, you should know that you could lose everything granted to you in the document.

In terrorem clauses, sometimes called no-contest or forfeiture clauses, are used in wills to keep beneficiaries from contesting the will by either completely disinheriting them from any share, or reducing their share to a nominal amount. These clauses are not uniformly recognized. In some states, in terrorem clauses are disfavored, but can still be enforceable. (Tennessee is one of seven states where an in terrorem clause may be challenged based on both good faith and probable cause.)

Under the Tennessee Uniform Trust Act, the rules of construction applying to wills also apply to trusts. (Tenn. Code Ann. § 35-15-112) There are far fewer cases interpreting forfeiture clauses in a trust. (1)Accordingly, courts will look to the laws governing wills to interpret forfeiture provisions contained in trusts.

The Tennessee Supreme Court has long recognized that a forfeiture provision in a will is not void as against public policy. (Winningham v. Winningham, 966 S.W.2d 48, 51, Tenn. 1998); (Woolard v. Ferrell, 26 Tenn. App. 197, 169 S.W.2d 134, 136, Ct. App. 1942). Here, the legal standard applying is “where the contest has not been made in good faith, and upon probable cause and reasonable justification, the forfeiture should be given full operative effect.” (Qualls v. Klutts, M200301850COAR3CV, 2005 WL 1887121 at *5, Tenn. Ct. App. Aug. 9, 2005)

The element of probable cause means the contestant must have a reasonable ground or reasonable justification for bringing the action. (Winningham, 966 S.W.2d at 53) “The essential point is that the contestant must show that under all circumstances the contest was reasonably justified.” (Winningham, 966 S.W.2d at 53) The court may also factor whether the challenge appears to be that of “a mere vexatious act of a disappointed child or next of kin.” (Winningham, 966 S.W.2d at 51)

As you can see, contesting a will or trust can be complicated and quite risky. If you decide to proceed with a challenge, make sure that you have a qualified, experienced probate attorney on your side. The Lawyers of Brown & Roberto are ready to fight for you. Contact us today to schedule your free consultation. Give us a call at (865) 691-2777 or contact us through our website Brown & Roberto, PLLC to set up a free consultation.

(1) See Simmons v. Hitt, 546 S.W.2d 587, 591 (Tenn. Ct. App. 1976)(forfeiture provisions in trusts “are not illegal and will generally be enforced unless justice and equity are violated” – case interpreting an employee retirement plan placed in trust and finding the forfeiture provision unenforceable where the employees were not notified of the subsequent addition of the provision).

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