Error of Signing Affidavit Attached to Will, Instead of Will, Invalidates Will in Tennessee Supreme Court Decision

Posted on Apr 6 2014 9:40PM by Attorney, Jason A. Lee

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.


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

TAGS: Wills, Witnesses to will, Execution
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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