Unfairly or unexpectedly left out of the Will? You may have legal recourse.

Posted on: December 6, 2019

This month’s blog post is by Attorney Jason N. King.  Jason focuses his practice on business law, bankruptcy law, civil litigation, creditors’ rights, and estate planning and probate law. 

There’s no question that the death of a loved one is an emotionally difficult time for those who were close to the decedent. When the loved one was the primary bread winner, his or her death can also lead to financial strain on dependents. Then there are times when the decedent’s heirs and dependents discover that their loved one wrote a will that leaves their most valuable assets to someone else under circumstances that seem suspicious and unmerited. Maybe the will disproportionately favors the adult child who voluntarily undertook the burden of caring for the elderly or dying parent, while seeming to leave his or her siblings out in the cold. Perhaps it is the late-life love interest who usurps the legacy expected by the heirs. For the aggrieved parties in these and other similar circumstances, who found they were not sufficiently blessed to be the object of their loved one’s greatest bounty, may find justice in law of undue influence.  The Tennessee Pattern Jury Instructions define “undue influence as

…the overcoming of the mind of the person making a will by acts or conduct of another person. Mere general influence of another person that does not affect the act of making a will is not undue influence. To be undue influence, the influence must amount to coercion that destroys the freedom of choice of the person making the will. It substitutes the wishes or desires of another person and compels the maker of the will to dispose of property in a way that would not have been done otherwise.[1]

Bear in mind it is not unlawful in Tennessee to influence another in the making of a will. One Court clarified,

that it is not influence that invalidates a conveyance or will but undue influence; that “(a) person has a right by fair argument or persuasion to induce another to make a will (sign a deed), and even to make it in his own favor,” provided the influence is “exerted in a fair and reasonable manner, and without fraud or deception.[2]

The Tennessee Pattern Jury Instructions direct jurors to presume that the will was obtained by undue influence where 1) a confidential relationship existed between the defendant and the person making the will and; 2) that the defendant was active in causing the will to be made and benefitted from it.[3] …a finding of a ‘confidential relationship’ is a necessary predicate to an undue influence claim. “[T]he doctrine of undue influence is applicable only where there is a confidential relationship” between the dominant party and the other party.[4] “Confidential relationships” are those where one party reposes a special trust and confidence in the other party, such as where one holds an unrestricted power of attorney over another.[5] In one significant case where an adult child was alleged to have unduly influenced the deceased parent, the Tennessee Supreme Court held:

that the normal relationship between a mentally competent parent and an adult child is not per se a confidential relationship and raises no presumption of the invalidity of a gift from one to the other. In order for such a presumption to arise there must be a showing that there were present the elements of dominion and control by the stronger over the weaker, or there must be a showing of senility or physical and mental deterioration of the donor or that fraud or duress was involved, or other conditions which would tend to establish that the free agency of the donor was destroyed and the will of the donee was substituted therefor. [6]

It is that second prong where evidence of “suspicious circumstances” come in to play. For example, the decedent’s decision to leave the lion’s share of his estate to his caregivers is, without more, not grounds for invalidating the will. Suspicious circumstances must show that the will was not the decedent’s free and independent decision.[7]

The Tennessee Pattern Jury Instructions provides one instruction that details some “suspicious circumstances” that are evidence of undue influence.

Do the provisions of the will favor people who have no blood relationship to the maker of the will over people who have a blood relationship?

Do the terms of the will unduly benefit the chief beneficiary [beneficiaries]of the will?

Are the terms of the will different from the expressed intentions of the maker of the will?

Did the chief beneficiary’s [beneficiaries’]relationship to the person making the will give the beneficiary [ies]an opportunity to influence the terms of the will?

Did the mental and physical condition of the maker of the will allow the maker’s freedom of choice to be overcome by the actions of others?

Did the chief beneficiary [beneficiaries]of the will actively take part in determining the provisions of the will or in causing it to be executed?[8]


Proof of “family and other relationships,” alone, provides no support to an undue influence claim. Kelley, at 197. However, proof of such relationships coupled with proof of domination and control, does establish the existence of a confidential relationship, but does not make out a prima facie claim of undue influence unless an additional suspicious circumstance exists.[9]

Evidence of suspicious circumstances is often the key to convincing a jury (or Court in a non-jury trial) that the maker of the will was unduly influenced. However, under circumstances where undue influence is presumed, a defendant may successfully defend the will by presenting clear and convincing evidence that the making of the will was not the result of undue influence.[10] One Court explained the nature of that showing this way

The jury should not be concerned with the question of whether the testator did right by those who ordinarily would be the objects of the testator’s bounty. The jury’s function is limited to a determination of the testator’s capacity to make a will and whether the provisions in the will were arrived at through the free agency of the testator rather than through the imposition of someone else’s will. If the jury finds in favor of the will on these two questions it has found that the transaction was fair.[11]

If the will of your deceased loved one leaves you a great deal less than what you expected, then you are no doubt both surprised and hurt. Do not delay in reaching out to an attorney whom you trust for guidance in this area, as Tennessee law limits the time within which you must formally file a case that challenges the will.


[1] T.P.I.—CIVIL11.37 Undue Influence, 8 Tenn. Prac. Pattern Jury Instr. T.P.I.-Civil 11.37 (2019 ed.)

[2] Kelly v. Allen, 558 S.W.2d 845, 847 (Tenn. 1977), citing, Phillips’ Pritchard on Wills, Sections 130, 131; Halle v. Summerfield, 199 Tenn. 445, 287 S.W.2d 57 (1956).

[3] T.P.I.—CIVIL11.39 Undue Influence- Confidential Relationship, 8 Tenn. Prac. Pattern Jury Instr. T.P.I.-Civil 11.37 (2019 ed.)

[4] In re Estate of Storey, No. W2010-00819-COA-R3CV, 2011 WL 2174901, at *20–21 (Tenn. Ct. App. May 31, 2011), citing, In re Estate of Brevard, 213 S.W.3d 298, 302 (Tenn.Ct.App.2006) (citing Keasler v. Estate of Keasler, 973 S.W.2d 213, 219 (Tenn.Ct.App.1997); Simmons v. Foster, 622 S.W.2d 838, 840 (Tenn.Ct.App.1981))

[5] Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995), holding modified by In re Estate of Link, 542 S.W.3d 438 (Tenn. Ct. App. 2017).

[6]Kelly at 848, citing, Turner v. Leathers,  232 S.W.2d 269 (1950); Peoples Bank v. Baxter, 298 S.W.2d 732 (1956); Mahunda v. Thomas, 402 S.W.2d 485 (1965); In Vantrease v. Carl, 410 S.W.2d 629 (1966); Iacometti v. Frassinelli, 494 S.W.2d 496, (Tenn.App.1973); In Robinson v. Robinson, 517 S.W.2d 202, (Tenn.App.1974); Richmond v. Christian, 555 S.W.2d 105 (Tenn.1977).

[7] Mitchell v. Smith, 779 S.W.2d 384 (Tenn. App. 1989).

[8] T.P.I.—CIVIL11.38 Circumstances Probative of Undue Influence, 8 Tenn. Prac. Pattern Jury Instr. T.P.I.-Civil 11.38 (2018 ed.); Instruction approved, Goodall v. Crawford, 611 S.W.2d 602 (Tenn. App. 1980); Taliaferro v. Green, 622 S.W.2d 829 (Tenn. App. 1981); In re Estate of Bradley, 817 S.W.2d 320 (Tenn. App. 1991).

[9] In re Estate of Brevard, 213 S.W.3d 298, 303 (Tenn. Ct. App. 2006), citing, Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002).

[10] T.P.I.—CIVIL11.39

[11]  In re DePriest, 733 S.W.2d 74, 79 (Tenn. App. 1986).

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