Can an Appointed Executor Contest the Will They Offered For Probate in Tennessee?

A really interesting question was addressed by the Tennessee Court of Appeals recently on whether an executor who submitted a Will for probate and was appointed as executor can subsequently contest the terms of the Will.  The Tennessee Court of Appeals in the case of In Re: Estate of Ellra Donald Bostic, No. E2016-00553-COA-R3-CV, 2016 WL 7105213 (Tenn. Ct. App. 2016) dealt with the specific question of whether an appointed executor can contest the Will that is being probated. 

The Court noted that the legal doctrine that applies is “estoppel”.  The reason is because “executors, as fiduciaries, owe a duty of undivided loyalty to the Estate and must deal with the beneficiaries in the utmost good faith.” In re: Estate of Wallace, 829 S.W.2d 696, 705 (Tenn. Ct. App. 1992).  The named executor in a Will has “the duty to both offer the Will for probate and defend the Will against any challenges to its validity” citing Love v. Cave, 622 S.W.2d 52, 57 (Tenn. Ct. App. 1981).  The Court cited the most persuasive treatise on Wills and Probate issues, Pritchard on Wills, which states that “if the executor had knowledge of defects in the Will but nevertheless proceeded to probate it then the executor is estopped from contesting the Will.”  Bostic at 4 (citing Pritchard on Wills § 364).  

However, the Tennessee Court of Appeals has also held that an executor is not estopped from challenging a Will after presenting it to probate when “the executor offered the will for probate in good faith and without knowledge of the defects in its execution.”  Bostic at 4 (citing McClure v. Wade, 235 S.W.2d 835, 838 (Tenn. Ct. App. 1950).  When this situation occurs, the executor must resign from her position, and the “trial court should appoint an administrator of pendente lite to take charge of the estate and represent it during the pendency of the probate proceedings”.  Bostic at 4.  The trial court must make a determination as to whether the executor is estopped from challenging a Will based on whether they knew of the defects of the Will at the time the executor was appointed.  This is the initial threshold inquiry and once the Court makes that decision then the Court can determine whether the estoppel doctrine applies. Bostic at 4, 5.  In this particular case (Bostic case), the Court found that the trial court did not perform the proper analysis and, in fact, shifted the burden on this issue inappropriately and therefore the was remanded to the trial court to make a determination based on the Court of Appeals statement of the law. 

As a result, in Tennessee, a person who is named as executor of a Will and later wishes to contest the Will must move forward very carefully.  If the executor knows of the defects at the time they offer the Will for probate and still move forward with offering the will for probate, they cannot later challenge the Will.  However, if the executor does not know of the defects or issues with the Will at the time they submit the Will for probate, then they can challenge the Will under Tennessee law.  This will be a decision for the Trial Court to make after hearing the evidence on this issue.