How Do You Establish “Undue Influence” in Tennessee When Contesting a Tennessee Will?

Posted on Nov 1 2015 8:09PM by Attorney, Jason A. Lee

One of the most common ways that Tennessee Wills are contested is based on the theory of “undue influence”.  This is a broad category where a will can be contested based on the theory that the person benefitting from the Will exhibited influence over the decedent in an inappropriate manner.  One example would be where a person manipulated someone who had dementia or Alzheimer’s into changing their will for that person’s direct benefit (often to the exclusion of other family members). 


In order to establish that a Will was subject to “undue influence” in Tennessee, certain circumstances must be present.  This includes the following as notes by the Tennessee Court of Appeals:


The suspicious circumstances most frequently relied upon to establish undue influence are: (1) the existence of a confidential relationship between the testator and the beneficiary; (2) the testator's physical or mental deterioration; and (3) the beneficiary's active involvement in procuring the will.  In addition to proof of a transaction benefitting the dominant person in a confidential relationship, other recognized suspicious circumstances include: (1) secrecy concerning the will's existence; (2) the testator's advanced age; (3) the lack of independent advice in preparing the will; (4) the testator's illiteracy or blindness; (5) the unjust or unnatural nature of the will's terms; (6) the testator being in an emotionally distraught state; (7) discrepancies between the will and the testator's expressed intentions; and (8) fraud or duress directed toward the testator.


Kelley v. Johns, 96 S.W.3d 189 (Tenn. Ct. App. 2002).  The burden of proof to establish “undue influence” is on the individuals who are contesting the Will.  Tennessee courts have also provided the following helpful commentary on how “undue influence” must be established in Tennessee:


Invalidating a will because of undue influence is generally not a simple undertaking. While undue influence can be proved either by direct or by circumstantial evidence, direct evidence is rarely available. In re Estate of Maddox, 60 S.W.3d 84, 88 (Tenn. Ct. App. 2001). Thus, in most cases, the contestants establish undue influence by proving the existence of suspicious circumstances warranting the conclusion that the will was not the testator's free and independent act. Mitchell v. Smith, 779 S.W.2d 384, 388 (Tenn. Ct. App.1989). The courts have refrained from prescribing the type or number of suspicious circumstances necessary to invalidate a will because of undue influence. Instead, they have pointed out that the issue should “be decided by the application of sound principles and good sense to the facts of each case.”


The scope of the proof regarding undue influence is quite broad. Over sixty years ago, Judge John DeWitt, writing for this Court, stated:


It is generally held that upon such issues every fact and circumstance, no matter how little its probative value, which throws light upon these issues, is admissible. The range of inquiry may cover, not only the provisions of the will itself, and the circumstances surrounding its execution, but also the mental condition of the testator, the motive and opportunity of others to influence him unduly, his relations with persons benefitted by or excluded from the will, and the acts and declarations of such persons. Although none of these matters standing alone may be sufficient to establish the issues, yet taken together they may have that effect.


Hager v. Hager, 66 S.W.2d 250, 260 (1933).


This is the kind of evidence that is needed to contest a Will under a theory of “undue influence” in Tennessee.  This kind of case can be very difficult to establish and win, but it can be done.  An experienced Tennessee probate litigation attorney should be used to litigate this kind of case.  The earlier you can involve an attorney in the process, the better.  I have often been contacted in these types of cases one or two years after the death and it is much harder to contest a Will at that point in the process.


Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

TAGS: Will Contest, Tennessee Probate Law
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Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com