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Signatures of Witnesses to Will on Affidavit, but Not on Actual Will Does Not Comply with Tennessee Law

Posted on Mar 22 2015 3:01PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals’ decision of In re Estate of Bill Morris, No. M2014-00874-COA-R3-CV, 2015 WL 557970 (Tenn. Ct. App. 2015) discussed the requirements for witness signatures on a Tennessee will.  T.C.A. § 32-1-104 has very specific requirements for the execution of a will under Tennessee law.  These requirements are as follows: 

 

The execution of a will, other than a holographic or nuncupative will, must be by the signature of the testator and of at least two (2) witnesses as follows:

(1) The testator shall signify to the attesting witnesses that the instrument is the testator's will and either:

(A) The testator sign;

(B) Acknowledge the testator's signature already made; or

(C) At the testator's direction and in the testator's presence have someone else sign the testator's name; and

(D) In any of the above cases the act must be done in the presence of two (2) or more attesting witnesses.

(2) The attesting witnesses must sign:

(A) In the presence of the testator; and

(B) In the presence of each other.

 

In the Morris case, the witnesses signed an affidavit attached to the will that attested the will but they did not actually sign on the will document.  The question, therefore, in this case was whether this will complied with Tennessee law and was a valid will to be admitted for purposes of establishing the decedent’s wishes.

 

Ultimately, the Tennessee Court of Appeals found that having witness signatures on an affidavit that is attached to a will is not the same as actually signing the will.  T.C.A. § 32-1-104 provides that there must be signatures of the witnesses on the actual will and, therefore, signatures on the affidavit attached to the will are not valid under Tennessee law.  For these reasons, this will is not a valid will and “does not satisfy the statutory formalities for executing a will in this state.  As such, we further hold that the decedent died intestate.” Morris at 4. 

 

This may seem like a very harsh result because it appears this will was likely intended by the decedent to be a valid will except for this technical issue.  However, Tennessee courts have strictly applied the statutes on will execution over the years.  This is one of the many reasons why it is very important to hire an experienced wills attorney to help you with drafting a will and other such legal documents.  Small mistakes like this can prevent the will from being admitted to probate and to be considered as a valid will.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

TAGS: Wills, Witnesses to will, Tennessee Probate Law
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Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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