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There are three types of wills in Tennessee. There are holographic wills, nuncupative wills, and then there is a general category of wills that includes any will that is not a holographic or nuncupative will. This is the most common type of will and is what most people think of when discussing a will. These “normal” wills are executed pursuant to certain procedures found in T.C.A. § 32-1-104. T.C.A. § 32-1-104 provides requirements for the proper execution of a will (other than a holographic or nuncupative will which are dealt with separately in specific statutes). Generally, the execution of this kind of will requires the signature of the testator and at least two witnesses to the execution. The entirety of T.C.A. § 32-1-104 provides 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.
As a result, the testator must sign the will in the presence of two witnesses. In the alternative, the testator could acknowledge that a signature already on the document is the testator’s, however, it is better to have the actual signing of the will completed in the presence of the witnesses to avoid any future conflict. Further the witnesses must attest to the signature of the testator in the presence of the testator and in the presence of each other by signing the will.
Tennessee courts can be very strict in applying the requirements for the signature of the testator and two witnesses under T.C.A. § 32-1-104. As a result, it is very important to have an attorney who knows Tennessee law and how to properly execute wills to supervise the signing of the will as required to risk any future dispute about the authenticity of the will.
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