You only get one bite at the apple in a will contest

March 29th, 2023  

In the Estate of James M. Smalling, Mr. Smalling (the Decedent) died testate and his Will was admitted to probate. Two months later, the  Decedent’s son filed a Will Contest case. During the procedural aspects of the case during a court hearing on the Proponent of the Will’s  Motion to Dismiss, the contestant (the Decedent’s son) made an oral announcement in court that he intended to take a voluntary non-suit  under the Tennessee Rules of Civil Procedure. Shortly thereafter, the trial court entered the Order of Non-Suit.

Six months later, the son filed his second Will Contest in the same court. The proponent of the Will filed a Motion to Dismiss asserting the  dismissal of the first Will Contest operated as a bar to filing of the second Will Contest. Although Tennessee Rule of Civil Procedures 41.01  indicates that non-suits do not prevent refiling the case, the Court in the Smalling case dealt with whether a voluntary dismissal of a Will  Contest barred the filing of a second Will Contest.

In upholding the trial court’s dismissal of the second Will Contest, the Court of Appeals wrote that a Chancery Court may use its discretion to  certify the Will Contest to the Circuit Court or it may simply assume jurisdiction over the Will Contest by making its intention clear. The  Court of Appeals cited a 2001 Tennessee Supreme Court case that found under the Tennessee Rules of Civil Procedure that an individual is  barred from bringing a second Will Contest following a voluntary dismissal. The Court explained that the taking of a voluntary dismissal in a  Will Contest defeats the goals of efficiency and quick resolution in probate in Will Contest proceedings. As such, the Court of Appeals held  that the contestant’s voluntary dismissal was with prejudice and barred the second filing of a Will Contest.

My Comments: Many times, contestants to a Will and their counsel think that Will Contests are a routine procedural case. However, the  Smalling Estate case gives an indication of procedural aspects that must be followed and specifically only allows “one bite” at the apple in a  Will Contest.

Yours very truly,
William C. Bell, Jr., Attorney at Law