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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.
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