Will Contest Warnings

Why are so many folks hell-bent on contesting wills? And why are not the dead rising from graves to chastise these hellbenders? I reckon the answers are obvious: greed; impossibility. If you represent a client on either side of these unseemly contests, there are a few procedural issues that you need to be aware of.

First, consider the Dead Person's Statute codified at Tenn. Code Ann.  §24-1-203. Translated from 1870 to 2010 English, it provides that, if the estate of a dead person is a party to a lawsuit, neither party can testify about a statement made by the deceased before death or to a transaction with that person. Parties can testify to any other material matters. Nonparties can testify even about the statements and transactions. Documents are not banned by the statute.

What if the lawsuit is a will contest? The Dead Person's Statute does not apply. See Beadles v. Alexander, 68 Tenn. 604 (1877):

The spirit and meaning of the statute is that, in a suit between the estate of a deceased person and a living party, the latter shall not be allowed to give his version of the transactions with or conversations of the deceased, whose lips are sealed. This principle does not apply to the present case, where both the devisees and heirs are living and compelled to testify for themselves.

That continues to be the law today. See In re Estate of Eden, 99 S.W.3d 82 (Tenn. Ct. App. 1995), citing Beadles.

Consequently, in a will contest both the plaintiff and the defendant can testify about the decedent's statements. They can also testify about transactions with the deceased. There is simply no statutory bar.

Second, recall one of the exceptions to the attorney-client privilege. For both evidentiary and ethical reasons we are bound to protect a client's confidential communications. Usually we cannot be forced to divulge them even after our client dies.

But if we drafted a will for that client and it is subjected to an unseemly contest, things change. Then we must testify to what the client told us. See Estate of Hamilton v. Morris, 67 S.W.3d 786 (Tenn. Ct. App. 2001). And probably that is what the testator/client would want.

Third, if you are the lawyer for the contestant, DO NOT NONSUIT! If you do, probably you will be defending a legal malpractice action filed by your litigious former client. I wrote about this issue in my February 2003 column, but let me repeat my warning.

In re Estate of Barnhill, 62 S.W.3d 139 (Tenn. 2001), contains the explanation. Tennessee Rule of Civil Procedure 66 preserves "the practice in the administration of estates" before the rules became effective on Jan. 1, 1971. Nonsuits were dismissals on the merits before that date, and the same is true today.

Be warned. Take care.  


Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.