One way to contest a
will in Tennessee is to assert that the decedent had a “lack of testamentary
capacity”. Basically, this is an
assertion that the individual who executed the will was not actually competent
to execute the will. Tennessee has many
cases that discuss this claim in the context, most often, of a will contest
situation.
The Tennessee Court of Appeals has said the
following about what is required to establish “lack of testamentary capacity”
contest to a will:
The law requires
that the testator's mind, at the time the will is executed, must be
sufficiently sound to enable him or her to know and understand the force and
consequence of the act of making the will. American Trust &
Banking Co. v. Williams, 225 S.W.2d 79, 83 (1948). The testator must have
an intelligent consciousness of the nature and effect of the act, a knowledge
of the property possessed and an understanding of the disposition to be made.
Goodall v. Crawford, 611 S.W.2d 602, 604 (Tenn. App. 1981). While evidence
regarding factors such as physical weakness or disease, old age, blunt
perception or failing mind and memory is admissible on the issue of
testamentary capacity, it is not conclusive and the testator is not thereby
rendered incompetent if her mind is sufficiently sound to enable her to know
and understand what she is doing. American Trust, supra; 79 Am.Jur.2d Wills §
77 (1975).
If the individual who
executes a Will does not meet the above factors, then the Will can be attacked
under a theory of “lack of testamentary capacity”. Medical evidence and testimony is best to be
able to attack a Will under this theory.
If a doctor is willing to testify that the individual did not appreciate
what they were doing at the time of the Will, then that could form a strong
basis to defeat a Will. One thing you can do to prevent a Will contest over this issues is to have a doctor assess the individual around the time they do their Will to make sure they have the mental capacity to make a will.
If you are going
to pursue this kind of theory in Tennessee, then you need a competent Tennessee
litigation attorney who handles Will contest cases in a probate litigation
setting.
Follow me on Twitter at @jasonalee for updates from the
Tennessee Wills and Estates blog.
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