Estate Planning Newsletter – April 2017

CAN AN EXECUTOR CONTEST A WILL AFTER HE HAS ADMITTED IT TO PROBATE?

In the case of The Estate of Ellra Donald Bostic, the Decedent (“Donald”) died approximately three months after he executed his Will.  Donald appointed his daughter, June, as the Executor.  June probated the Will approximately one month after Donald died.  Donald bequeathed his home, contents, a trailer, and $25,000 cash to his “friend,” Linda.  June was sworn in as Executor and signed an Oath which she agreed she would “honestly and faithfully discharge” her duties “according to the terms of the Decedent’s Will.”

Approximately three months later, June filed a Petition to Contest the Will, alledging that Linda was a paramour of the Decedent and that Linda fraudulently lead the Decedent to believe that Linda’s husband was deceased.  June alleged that this fraud, coupled with the confidential relationship between the Decedent and Linda, weakened the Decedent’s mental and physical condition and that the bequest to Linda was the product of undue influence.  The Trial Court dismissed the Will contest and ruled that June, the Executor, was estopped from contesting the Will because she had requested and received appointment as the Executor and swore to adhere to the Will’s provisions.

The Court of Appeals reversed the Trial Court and remanded the case back to the Trial Court for a trial on the merits.  The Court of Appeals wrote that Tennessee law has held that an Executor is not estopped from challenging a Will after presenting it for probate when the Executor presented the Will in good faith and had no knowledge of any defects to the Will at the time the Executor was appointed.  Under the circumstances of an Executor contesting the Will, the Executor must resign from that position, and the Trial Court should appoint an administrator pendende lite to take charge of the Estate and represent it during the pendency of the probate proceedings.  The Court further wrote that the threshold inquiry is whether the contestant had knowledge of the defects in the Will at the time he or she was appointed.  Without a determination of this issue, supported by appropriate findings, a dismissal on the basis of the contestant being the Executor is an error.

MY RECOMMENDATION:   The circumstances in the Bostic case are a bit rare.  However, an Executor should remember, he or she can still contest a Will he or she filed for probate if the Executor later discovers grounds for a contest, but the Executor contesting the Will must resign as Executor as part of the process.

Yours very truly,

RAINEY, KIZER, REVIERE & BELL, P.L.C.

William C. Bell, Jr., Attorney at Law