Witnessing Requirements for Wills under Tennessee Law

signingIn the recent Tennessee estate case, In Re Estate of Morris, Tenn. Ct. App. (2014), the court had to decide on the matter of the legal effectiveness of the will. The decedent left behind three living children, and grandchildren from one predeceased child. He also excluded three potential heirs from his will.

His will was admitted to probate, and it had witness signatures on an attached affidavit page, but nowhere on the actual will itself. Some of the heirs challenged the admittance of the will to probate, since it did not meet Tennessee’s statutory requirements that wills be signed by two witnesses in order to be legally enforceable.

The court found that there was no dispute as to whether the testator properly signed his will at the end of the document. The relevant question was whether the will was properly signed by the witnesses as required by Tenn. Code Ann. Sec. 32-1-104. It states in relevant part, that in order to be valid, other than in the case of a handwritten (holographic) or nuncupative (oral) will, the will must be signed by the testator and at least two witnesses as follows:

  • The testator shall signify to the attesting witnesses that the instrument is that person’s will AND either
    • The testator then signs the will;
    • The testator acknowledges that he or she has already signed it; or
    • At the testator’s direction, and in the testator’s presence, someone else signs the testator’s name; AND
  • The above acts (whichever of them is done) must be in the presence of two or more witnesses.
  • Those witnesses must sign
    • In the presence of the testator, AND
    • In the presence of each other.

Here, the two witnesses had presumably met all of the above requirements, except that instead of signing the actual will itself, they signed the self-proving affidavit. Therefore, those seeking to have the will enforced were urging the court to treat the pages as a piece of the will, rather than as a separate document.

The court found that Tennessee courts have consistently upheld the statutes requiring the formalities for the execution of a will as mandatory, and thus they have required strict compliance with these rules.

Tennessee law makes a clear distinction between the will itself and a self-proving affidavit, and therefore the court cannot simply ignore the clearly stated requirements in order to effectuate the testator’s purported intent.

Therefore, the court reversed the order of the lower court and remanded for proceedings consistent with the opinion.

This case is a prime example of the importance of hiring an experienced estate planning attorney to set up your will and other related estate documents. Ensuring that your estate is in order will ensure that your family is cared for. If you find yourself in need of assistance with estate, probate, or trust litigation, contact the experienced Nashville estate litigation attorneys at Martin Heller Potempa & Sheppard, PLLC. We can be reached through this website, or by calling 615-800-7096.

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