“You cannot step into the same river twice.” — Heraclitus of Ephesus¹

When I was a young lawyer, one of the benefits of being a trusts and estates (T&E) lawyer was that the law did not change rapidly or dramatically. Select tax law changes came every four or more years (usually with election cycles); trust, estate and property law changes came at a glacial pace; and most legal changes were somewhat predictable. Keeping up was not hard; I spent more of my time mastering strategies and techniques than reviewing legal developments.

Those days are gone. Federal tax law is a constant political battlefield, and changes are more frequent and more drastic than they used to be. Tennessee now makes annual updates to trust legislation. Even property law concepts that we learned in law school because they remained fairly constant in the common law for centuries are now up for debate and significant change (like much of culture, society and government). Keeping up is a bigger lift than it used to be. Following are some important developments in T&E practice.

FEDERAL TAXES

2025 “reconciliation” legislation signed into law on July 4 contains dozens of tax provisions. Readers no doubt have seen and have access to numerous summaries. Here are a few items relevant for estate planning.

Charitable Contribution Deduction for Non-Itemizers. Permanently reinstates the non-itemizer charitable contribution deduction to a maximum of $1,000 for single taxpayers, $2,000 for joint filers. Effective for tax years beginning after 2025.²

0.5% Floor on Charitable Contribution Deduction for Itemizers. Allows itemized deduction for charitable contributions only to the extent they exceed 0.5% of the taxpayer’s contribution base (generally, adjusted gross income). Effective for tax years beginning after 2025.³

Gift and Estate Taxes. The cumulative gift tax (during life) and estate tax (at death) exemption amount in 2025 is $13.99 million per person ($27.98 million per married couple because the exemption is “portable” between spouses). The exemption was scheduled to be cut in half in 2026 but now is slated to be $15 million per person ($30 million for a married couple) in 2026 and adjusted annually for inflation thereafter. [Remember that the “generation-skipping transfer” (GST) tax exemption is not portable between spouses.]

TENNESSEE LEGISLATION

The 2025 Tennessee trust law changes were more modest than in some years. A key theme was embracing electronic reporting to start statutes of limitations that are based on a person’s knowledge.

TENNESSEE CASES

Several 2025 Tennessee cases are relevant to T&E practice.

Copies of Prior Wills Insufficient to Create Standing for Will Contest. The 2023 Seeber case⁴ provided that a party can establish standing to bring a will contest if the party was named as a beneficiary under an earlier will or codicil or would be an intestate heir of the decedent if the will were invalidated. Even though the contestants had not produced the originals of the prior wills and had not initiated lost will proceedings, in order to find standing the court could rely on copies of earlier documents to establish the substance or contents of the originals.

The 2025 Faulkner case⁵ distinguished Seeber:

[In] Estate of Seeber … the contestants alleged that the testator lacked testamentary capacity and that she was unduly influenced in making her last will. Like Mr. Faulkner, none of the contestants would inherit under the laws of intestate succession, so they alleged standing based on a prior will. They also failed to produce an original testamentary instrument, instead relying on a signed copy of the prior will. … Notably, in Seeber, the proponent challenged the contestants’ standing via a Rule 12.02(6) motion to dismiss, which the trial court denied. On appeal, this Court agreed that the pleadings contained sufficient “specific factual averments” on standing to withstand the motion to dismiss. Because the contestants had alleged a lack of testamentary capacity and undue influence and produced a complete copy of a properly executed prior will, we determined that the contestants did not have to produce an original testamentary instrument or initiate lost will proceedings to withstand the motion. …

Additionally, in Estate of Seeber, the primary focus was on whether the contestants could overcome the presumption of revocation at the motion to dismiss stage. The Court reasoned that requiring such proof at the Rule 12.02(6) “juncture would, in essence, be requiring Contestants to prove the very merits of the will contest” in response to the motion to dismiss for lack of standing. And “a litigant need not establish a likelihood of success on the merits to establish standing.”

As Seeber illustrates, “the stage of the litigation at which standing is challenged” determines the mode and degree of evidence needed to establish standing. At the motion to dismiss stage, the standing determination turns solely on the factual allegations in the pleadings, which the court presumes to be true. But in later stages, the court may require more specific proof.

Mr. Faulkner’s litigation may have progressed beyond the initial pleading stage when the issue of his standing was decided. But, even if we assume this litigation was in the pleading stage, Mr. Faulkner fares no better. Unlike his counterparts in Estate of Seeber, Mr. Faulkner did not make any “specific factual averments” in support of standing. He did not allege any facts suggesting that the most recent will, in which the testator expressly revoked all prior wills, was invalid. He made no assertions as to testamentary capacity or the circumstances surrounding the execution of any the wills. The court held at least two hearings on the standing issue and gave Mr. Faulkner ample time to come forward with more information. Yet Mr. Faulkner simply pointed to the existence of copies of prior wills.

… Even under Estate of Seeber, a contestant must do more than submit signed copies of prior wills to establish standing for a will contest.⁶

Will Contest, as an In Rem Proceeding, Does Not Allow Voluntary Nonsuit. In re Estate of Whitehead⁷ is mostly about litigation procedure, but it reminds us that will contests are in rem proceedings and some of the implications of that fact:

A will contest is “a proceeding in rem, involving the distribution of the res, the estate,” and “[t]he proceedings do not depend on or refer to parties as did the proceedings in the common law courts; in a sense all the world are parties.” Quoting In re Est. of Barnhill, 62 S.W.3d 139, 144 (Tenn. 2001). … [A] petitioner in an in rem will contest does not have the unrestricted, unilateral right to take a voluntary nonsuit pursuant to Tennessee Rule of Civil Procedure 41.01. … [V]oluntary dismissals are not permitted in will contest proceedings.

Nonetheless, because the trial court, rather than the petitioner, dismissed the petition, the Court of Appeals upheld the dismissal.

Breach of Trustee Fiduciary Duty: Failure to Account Can Cause Trustee Defenses and Denials to Be Struck. Martin v. Martin⁸ is heavy on procedural issues, but it illustrates the rule that a court can strike a trustee’s defenses and denials in its answer based on the trustee’s failure to provide an accounting of the trust’s assets, despite the trial court’s repeated orders to do so.

Claim Against Estate: Presumption of Loan and Burden to Prove Gift. In the Curtis case⁹ a creditor filed a claim against the estate, arguing that money paid to the decedent was a loan. The executor argued that it was a gift. The court noted:

“the law presumes the delivery of a check is a loan and not a gift…” As such, [the executor] had the burden of proving the essentials of an inter vivos gift, which are (1) an intention of the donor to give and (2) delivery of the subject of the gift. The burden is upon the donee to clearly prove both of these elements and any doubts should be resolved against the finding of a gift. The court ruled that the executor had not satisfied her burden.

ORGAN DONATION

Too many people in this country die while waiting for a lifesaving organ transplant that never comes. Some of my clients tell me, “Of course, I want to be an organ donor.” Others are concerned that unscrupulous actors lead to attempts to harvest organs too soon. I used to think such concerns were the province of conspiracy theories, but recently I’ve seen stories of sometimes rushed medical determinations revolving around “circulatory death.”¹⁰ Informed clients can make the best choices for themselves.

CONCLUSION

Like many things in society, the pace of change is accelerating for T&E practitioners and keeping up can be a challenge. However, clients need up-to-date advice and the value we provide by giving it is greater than ever. |||

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EDDY SMITH practices with Kennerly Montgomery in Knoxville. He focuses on planning, administration and litigation related to trusts, estates, businesses and nonprofits. Smith is a fellow of The American College of Trust and Estate Counsel and served as chair of the TBA Estate Planning and Probate Section.

NOTES

1. “[P]re-Socratic philosopher from around 500 BCE, [] best known for [the] idea that everything in the universe is in a constant state of flux.” Heraclitus: The Philosophy of Perpetual Change, Philosophy Institute (Sept. 7, 2023), philosophy.institute/metaphysics/heraclitusphilosophy-perpetual-change/.
2. Internal Revenue Code (IRC) § 170(p).
3. IRC § 170(a)(1)(l).
4. In re Estate of Seeber, No. E2022-01476- COA-R3-CV (Tenn. Ct. App., September 27, 2023).
5. In re Estate of Faulkner, No. M2023-01055- COA-R3-CV (Tenn. Ct. App., July 21, 2025).
6. Id., at 5-6 (some citations omitted).
7. In re Estate of Whitehead, No. M2023- 01180-COA-R3-CV (Tenn. Ct. App., June 27, 2025).
8. Martin v. Martin, No. E2024-00214- COA-R3-CV (Tenn. Ct. App., July 24, 2025).
9. In re Estate of Curtis, No. E2024-00724- COA-R3-CV (Tenn. Ct. App., June 3, 2025).
10. Rosenthal and Tate, “A Push for More Organ Transplants Is Putting Donors at Risk” New York Times, July 20, 2025, 2023, available at www.nytimes.com/2025/07/20/us/organ-transplants-donors-alive.html [subscription required]; Jauhar, Patel and Smith, “Donor Organs Are Too Rare. We Need a New Definition of Death.” New York Times, July 30, 2025, available at www.nytimes.com/2025/07/30/opinion/organ-donors-death-definition.html [subscription required]:

A person may serve as an organ donor only after being declared dead. … Most donor organs today are obtained after brain death, defined by most state laws as a condition of permanent unconsciousness with no spontaneous breathing, no response to pain and no primitive reflexes — in other words, devastation of the whole brain. Organs obtained this way are often relatively healthy, because brain-dead patients can continue to circulate blood and oxygen. …

Brain death is rare, though. … Far more often, people die because their heart has permanently stopped beating, which is known as circulatory death. However, precisely because the blood has stopped circulating, organs from people who die this way are often damaged and unsuited for transplantation. … [E]ven a few minutes of a stopped heart often results in damage to the organs. This deprives potential recipients of healthy organs and thwarts the wishes of donors to have their organs used to help others.