Don’t Delay in Preparing Your Will

Benjamin Franklin once said, “You may delay, but time does not.” In the case of Carl Harris, his delay in addressing his testamentary wishes created a three-year court battle for his children. According to the Trial Court, Mr. Harris had always intended to disinherit one of his children and leave the family farm to the others. However, Mr. Harris waited to address this desire in the one-week period before his demise as a result of terminal cancer. During that time, he communicated with his lawyer, and two deeds were drafted leaving the property to the two children and a son-in-law, leaving out one of his children. He died less than three days later.
In reaching its decision, the Trial Court determined that the Plaintiff had not carried his burden of proving a confidential relationship between the devisee children and Mr. Harris, which would create the presumption of undue influence. Iacometti v. Frassinelli, 494 S.W.2d 496 (Tenn. Ct. App. 1973). See also Kelley v. Johns, 96 S.W.3d 189. The Court further determined that the Plaintiff did not carry his burden of proof that Mr. Harris lacked the mental capacity to execute the deeds in question. In Tennessee, the mental capacity to execute an instrument is where the person possesses the sufficient mind to understand… the effect of the act or transaction in which he is engaged.” Roberts v. Roberts, 827 S.W.2d 788 (Tenn. App. 1991) citing 17 CJS Contracts 133.
Most importantly, the Appeals court quotes CJS as to real property, stating that “if the donor has sufficient mental capacity to understand the extent and value of his property, what persons are the objects of his bounty, and the manner in which he is distributing his property among them, his gift will be valid.” CJS Gifts 13
The Court of Appeals affirmed the trial court in all respects, based in a large part upon the Court’s reliance on the testimony of Mr. Harris’ attorney. Plan for your conveyances early in order to avoid trouble for your heirs, and to leave no room for interpretation of your intention. In addition, the method of planning used by Mr Harris leaves trouble for his Estate in terms of gift tax on the property


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