The Tennessee Supreme Court recently
decided an interesting case on the proper execution of a will in Tennessee [In re:
Estate of Thomas Grady Chastain, 401 S.W.3d 612 (Tenn. 2012)]. This case dealt with a situation where the
decedent failed to put his signature on his two page will. He did, however, sign a one page affidavit of
attesting witnesses that was purported to be attached to the will. Chastain, at 615, 616. The questions before the Tennessee Supreme
Court was whether this was sufficient to qualify as the decedent’s signature
and whether this should be accepted by the Court as the last will and testament
of the decedent.
The statutory requirements under Tennessee law for the
signing of a will are found in T.C.A.
§ 32-1-104 and provide 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.
The Tennessee Supreme Court analyzed
whether the statute was complied with in this situation because his signature
was on the affidavit document, not the will.
The Court found ultimately "that Decedent's signature on the
Affidavit does not cure his failure to comply strictly with the statutory
formalities for executing an attested will. Despite Ms. Patterson's assertion
to the contrary, the Affidavit is not part of the Will." Chastain
at 620. As a result, the will was
deemed to be invalid under T.C.A.
§ 32-1-104. The Court noted that “Tennessee
courts have consistently interpreted statutes prescribing the formalities for
execution of an attested will as mandatory and have required strict compliance
with these statutory mandates.” Chastain
at 619.
This case is a great example that shows
how incredibly important it is to have a will properly executed under Tennessee
law with a competent experienced estate planning attorney. Even though the intentions of this decedent may
be clear that he intended to effectuate a will, he did not comply with the
statutory requirements and therefore the will is invalid. In this situation the failure to comply with
the technical requirements of the law prohibited this will from being accepted
to probate under Tennessee law and likely, the decedents true intentions for
his property will not be followed by the courts.
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