One of the most difficult things to hear is that your parent has passed away. Sometimes this loss can be exacerbated by the knowledge that your parent’s assets were directed to go to someone else and you were effectively cut out of their will. When this happens, your mind is likely flooded with questions:
- Did they intentionally cut me out of the will?
- Is the will valid?
- Did someone convince them to cut me out of the will?
- Why was I cut out?
These are important questions and you absolutely deserve an answer. After all, you are an heir of the estate; you would have inherited from your mother or father had they not executed a will that excluded you as a beneficiary.
So where do you begin? Where do you find the answers as to why you were not included in the will but this other beneficiary was. Here is an overview of how to effectively evaluate whether you should contest a will in Court in Tennessee.
Get a Copy of the Will
The first action you should take is obtain a copy of the will. Read the will in its entirety but pay especially close attention to the first few paragraphs. If persons are going to be excluded from taking under a will, then the document should mention that exclusion. Usually, a sentence or two is devoted to specifically excluding certain persons in the first few sections. The verbiage to look for should say something along the lines of: “I expressly and intentionally exclude (insert name of person) from taking under this will.”
If the will does not expressly mention you being cut out of the will, that does not mean that you somehow inherit, but the absence of such a clause can potentially be useful information if a will contest is filed.
Objectively Ask Yourself: Why Was I Cut Out?
As an estate planning lawyer, I see parents cut their children out of their wills on a regular basis. By far, the primary reason why kids are excluded is because their relationship with their parent has deteriorated. Usually there is a long history between parent and child of disagreement, fighting, and alienation. If that is the case, it provides some clue as to why a child was cut out and their inheritance provided to another.
However, when a parent and child have a stronger relationship, regular communication, and even dependency on one another, it becomes much harder to understand why a parent would cut out a child. After all, if the parent and child had a good relationship, it is logical to assume that they would leave a child at least some inheritance.
Additionally, it is important to consider the decedent’s relationships with other persons. For example, if a father has divorced and remarried a new wife, its understandable that the father wants to leave his new wife a portion of his assets. If the father had minimal assets and the children are much more financially secure than his new wife, it is not illogical to presume that he would leave everything to his wife. On the other hand, if this new wife was only recently married to the father after a week of dating, its far more difficult to believe he purposefully eliminated his children from his will, especially if the relationship was good.
The bottom line here is to consider the circumstances. Be objective. Talk to friends and family. Try to look at the situation as an outsider. Analyze the situation and ask yourself: Why did my mother or father cut me out of their will?
- Did we have a good relationship?
- Did we talk and communicate often?
- Did we have fights towards the end?
- Who was my father or mother hanging around before his/her death?
- Am I much more financially secure than the beneficiary of the will?
Answering some of these questions will provide some insight as to the important question of “Why?”
Did Your Parent Have Mental Impairments?
One of the ways of contesting a parent’s will is challenging the parent’s “testamentary capacity.” In other words, did your parent have the mental capability of conveying property at their death and understanding what was in the will? This question becomes especially important if your parent had any of the following conditions at the time of the execution of the will:
- Alzheimer’s disease/dementia
- History of mental instability such as bipolar disorder or schizophrenia
- Hearing impairment or blindness
- Trauma
- Use of certain medications or drugs
- Other conditions that would give rise to mental impairment
- Depression
If your parent had any of these conditions, it does not immediately mean that the will they executed is invalid. Rather, these conditions can cast doubt upon the validity of the will. If your mom or dad had an altered mental state at the time of the execution of the will, that mental state can be critical evidence in any will contest.
Did Someone Influence Your Parent to Sign the Will?
Perhaps the most common way of challenging a will is alleging that someone wrongfully influenced your parent to provide them certain assets. This type of situation is known as “undue influence.” Here is a typical example:
A mother has two children, a son and daughter, that she loves equally. She previously prepared a will dividing her estate 50/50. However, as time went by, the daughter began to take care of her mother as the son lived across the country. She gradually asserted more and more influence over the mother, gaining access to her bank accounts, controlling who she talked to, and isolating her. Son would call to check his mother, but the daughter would often screen and monitor the phone call. Upon her death, the will the daughter produced named her as the sole beneficiary.
This type of situation occurs regularly, but can be difficult to prove. Clear cut cases of undue influence are rare. Usually the evidence for such influence is limited because it usually involved verbal communication between the influencing party and the parent. Absent recordings, it is hard to prove in court what may have been said. As such, will contest lawyers look to other evidence to prove undue influence. Consider whether an individual has:
- Been named as power of attorney
- Moved in with the parent
- Added his/her name to the parent’s bank accounts
- Encouraged the updating or changing of the parents will
- Controlled communication with the parent
- Took the parent to financial or medical appointments alone
This type of evidence is not always clear and one fact is almost never determinative on its own. Rather, what is most common is a combination of acts by the person influencing the parent to gain that parent’s trust and ultimately his/her assets.
Additionally, understand that many times undue influence is coupled with lack of testamentary capacity as a way of challenging a will. Many times the parent’s underlying mental condition, such as dementia or Alzheimer’s disease, can make them much more susceptible to undue influence than someone that suffers minimal impairment.
Is There Something Wrong on the Execution of the Will?
To be a valid document, wills have certain requirements that must be met. In Tennessee, if the will is typed, the will must have two witnesses confirm that the person signing the will signed in the witnesses’ presence and that the witnesses signed in each other’s presence. Additionally, the will should have a self-providing affidavit in which the witnesses sign swearing under oath these facts are true. Without this self-providing affidavit, the personal representative of the estate must locate the witnesses and have them execute affidavits stating that the will was validly executed.
By contrast, if a will is handwritten, it must be in the handwriting of the decedent. It does not necessarily need to be witnessed to be valid. If someone other than the parent hand wrote the will or any amendment to a will, such a document would be invalid and subject to contest.
Bottom Line
If you have been cut out of a will, you do deserve answers as to why. It is very hard to understand why you were not included, but before contesting a will take an objective look at your circumstances. First, review the will. Then consider these questions:
- Did your parent have a mental impairment?
- Did someone influence your parent?
- Was there something wrong in the execution of the will?
If you think the answer to any of these questions is yes, call an experienced will contest attorney and explain your situation.