HAMILTON COUNTY WILL CONTEST PROCEDURES 1. STATUTE OF LIMITATIONS All actions to contest a will must be brought: • within 2 years from the entry of a order admitting a will to probate1 in common form, or • in case of a will propounded for probate in solemn form, before proof of the will is adduced. Of course, persons under 18 or of unsound mind, may bring an action within two years from the date of the removal of their disability.2 2. STANDING TO CONTEST A will can be set aside only at the instance of a party interested in the decedent’s estate as an heir3 or distributee.4 The right to contest a will is not a property right and does not pass by inheritance or descent to strangers in blood or estate to the testator. 3. FORMS • • • • • • • • • • 4. NOTICE OF WILL CONTEST & MOTION FOR CERTIFICATE OF WILL CONTEST (Form 151) CONTESTANT SURETY BOND FOR WILL CONTEST (Form 152) ORDER FOR CERTIFICATE OF WILL CONTEST (Form 153) DEVISEE/LEGATEE SURETY BOND FOR WILL CONTEST (Form 154) STATEMENT OF NO CONTEST (Form 155) CERTIFICATE OF WILL CONTEST (Form 156) PROBATE FILE TRANSCRIPT CONTENTS (Form 157) TRANSCRIPT COVER SHEET (Form 158) COST BILL (Form 159) RECEIPT FOR CERTIFICATE OF WILL CONTEST (Form 160) COMMENCEMENT OF CONTEST A will contest can be commenced: after probate of a will in common form or before proof of a will in solemn form5. 4.2 The contest procedure is commenced when one or more contestant files, in the Chancery Court Part 2, PROBATE DIVISION6, under a probate file number for the matter, both the • NOTICE OF WILL CONTEST & MOTION FOR CERTIFICATE OF WILL CONTEST (Form 151) wherein each contestant’s right and grounds to contest the will must be stated with particularity, and wherein the contestant(s) must elect either Chancery Court or Circuit Court to conduct the trial upon the validity of the will, and 1 T.C.A. § 32-4-108. T.C.A. § 28-1-106. 3 T.C.A. § 31-1-101(5). 4 T.C.A. § 31-1-101(4). 5 See Pritchard’s, 5th ed. §§ 344, 345. 6 T.C.A. § 32-4-109. Hamilton County Chancery Court, Part 2, has probate jurisdiction pursuant to Public Acts 1955, Ch 201. HAMILTON COUNTY WILL CONTEST PROCEDURES Page 1 of 3 pages. 2 [Form 150, Rev. 2003.12.19] American LegalNet, Inc. www.USCourtForms.com • 4.3 CONTESTANT SURETY BOND FOR WILL CONTEST (Form 152)7. See ¶ 5. After hearing the motion, the Court of the Probate Division will enter an order to deny or to sustain the right of the contestant(s) to contest the will8. If the Court sustains the right, the Court enters an ORDER FOR CERTIFICATE OF WILL CONTEST (Form 153) that: • requires all adult devisee(s) and legatee(s) to file the DEVISEE/LEGATEE SURETY BOND WILL CONTEST (Form 154)9 [See ¶ 5.], and • authorizes the PROBATE DIVISION clerk to issue a CERTIFICATE 156) to either Chancery Court or Circuit Court. See ¶ 6. OF FOR WILL CONTEST (Form 5. SURETY BONDS TO EXECUTOR(S) 5.1 The CONTESTANT SURETY BOND FOR WILL CONTEST (Form 152) and the DEVISEE/LEGATEE SURETY BOND FOR WILL CONTEST (Form 154) are surety bonds each in the penal sum of $500 payable to the executor(s), conditioned for the faithful prosecution of the action, and in case of failure therein, to pay all costs that may accrue thereon.10 These bonds are cumulative such that only one $500 bond is required from all the contestants and only one $500 bond is required from all the devisees and legatees, no matter how many parties. 5.2 A contestant, devisee or legatee is permitted to avoid this bond by qualifying in the manner prescribed for paupers11. 5.3 A devisee or legatee also may be excused from filing this bond if the devisee or legatee files the STATEMENT OF NO CONTEST (Form 155) with the PROBATE DIVISION stating that the devisee or legatee 1) claims nothing under the will, and 2) is willing that the will be set aside12. 5.4 If all the adult devisees or legatees refuse or fail to comply with 5.1, 5.2, or 5.3, the contested will shall not be admitted to probate, but shall be held for naught, and the property of the supposed testator shall be distributed as the property of an intestate13. [N.B. The need for application of equity is anticipated as it is easily foreseeable that strict compliance of this provision could seriously distort its purpose..] 6. CERTIFICATION TO TRIAL COURT A CERTIFICATE OF WILL CONTEST (Form 156) will be issued by the PROBATE DIVISION clerk. • The certificate will include a certified copy of the probate file through the date of the 7 T.C.A. § 32-4-101(1). T.C.A. § 32-4-101. 9 T.C.A. §§ 32-4-101(1) and 32-4-102(a). 10 T.C.A. § 32-4-101(1). 11 T.C.A. § 32-4-103. 12 T.C.A. § 32-4-102(a). 13 T.C.A. § 32-4-102(b). HAMILTON COUNTY WILL CONTEST PROCEDURES Page 2 of 3 pages. 8 [Form 150, Rev. 2003.12.19] American LegalNet, Inc. www.USCourtForms.com certification, PROBATE FILE TRANSCRIPT CONTENTS (Form 157), TRANSCRIPT COVER SHEET (Form 158), a COST BILL (Form 159), and a RECEIPT FOR CERTIFICATE OF WILL CONTEST (Form 160). • The certificate will include the original will14. • The certificate will be addressed and forwarded to the appropriate trial court15. 6.1 After the CERTIFICATE OF WILL CONTEST (Form 156) has been duly filed with the clerk of the Trial Court, the issue(s) are made up, under the direction of the Trial Court, to try the validity of the will16. 7. PROOF OF WILL 7.1 At trial of the issues, if the will is written with witnesses, it must be proved by all living witnesses, if to be found, and by such other persons as may be produced to support it17. 7.2 The issues may be heard before a jury in either Chancery Court or Circuit Court. 18 8. CONCLUSION OF CONTEST 8.1 When the adjudication of the contest is final, the Trial Court judgment upon the validity of the will shall be certified to the PROBATE DIVISION clerk to be recorded together with the original will if established.19 (N.B. It is in the best interest of the prevailing party in the Trial Court action to ensure this occurs: a prevailing contestant to cancel any outstanding Letters Testamentary in the Probate Court; a prevailing will proponent to enable the administration of the estate to proceed.) 14 At this juncture, the original will may be a copy of a lost will which has been probated. For all purposes in the will contest proceedings, the probated document is the original will even if it is, in fact, a copy. 15 The trial court elected by the contestant(s), in the notice of contest, to conduct a trial upon the validity of the will. T.C.A. § 32-4-101(2). In Hamilton County, as there is no separate probate court, the contestant(s) can elect either Chancery Court or Circuit Court. 16 T.C.A. § 32-4-104. 17 T.C.A. § 32-4-105. 18 T.C.A. §§ 32-4-104, 32-4-109. 19 T.C.A. § 32-4-107(a). HAMILTON COUNTY WILL CONTEST PROCEDURES Page 3 of 3 pages. [Form 150, Rev. 2003.12.19] American LegalNet, Inc. www.USCourtForms.com