In Tennessee How Does a Court Determine if the Intentions Stated in a Will are Clear Enough to Enforce?

Posted on Apr 13 2014 9:13PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals decision, Donna Perdue v. Estate of Daniel Jackson, No. W2012-02710-COA-R3-CV, 2013 WL 2644670 (Tenn. Ct. App. 2013) discussed how clear a will must be in order to be enforceable.  The will in this case was a holographic will (which simply means that the will was in the handwriting of the deceased person).  One party asserted the will was not clear enough to enforce in Tennessee probate court.  This case was ultimately appealed to the Tennessee Court of Appeals and the Court provided a helpful discussion about how Tennessee courts should determine if a will is clear enough to enforce. 


The Tennessee Court of Appeals discussed that the “purpose of a suit to construe a will is to ascertain and give effect to the testator's intention.” Perdue at 3.  The court noted that “it is the absolute right of the testator to direct the disposition of his property and the Court's [sic] are limited to the ascertainment and enforcement of his directions.”  Perdue at 3.  (citing Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990).


In discussing how to determine the intent of the testator, the Court provided an excellent description of the specific considerations of the Court when determining how to evaluate the language in the will.  The Court stated:


The cardinal rule in construction of all wills is that the court shall seek to discover the intention of the testator and give effect to it unless it contravenes some rule of law or public policy.  In seeking out the testator's intent, we have several rules of construction to aid us in that effort.  However, all rules of construction are merely aids in ascertaining the intent of the testator.


In gleaning the testator's intent, we look to the entire will, including any codicil.  The testator's intent is to be determined from the particular words used in the will itself, and not from what it is supposed the testator intended.  Where the will to be construed was drafted by the testator himself who was not versed in the law and without legal assistance the court in arriving at the intention of the testator should construe the language of the will with liberality to effectuate what appears to be the testamentary purpose.  We are also guided by an additional principle of construction; when a decedent undertakes to make a will, we must presume that the decedent intended to die testate, and we must seek to construe the will, where possible, as including all of the testator's property at death.


Because a testator's intent must be determined from the will itself, [g]enerally, parol or extrinsic evidence may not be used to vary, contradict, or add to unambiguous language used in a will.  Parol evidence is admissible, however, “to explain a latent ambiguity.”

(citations omitted from this block quote). Perdue at 3.


The Court also discussed whether a holographic will that is drafted by a lay person as opposed to an attorney should be given special consideration in interpreting the terms of the will.  The Court noted:


In construing a will, the skill of the draftsperson must be considered. While the rules of construction applicable are not to be given a different effect because of the fact that the will was prepared by a layperson, a will drawn by a layperson will be construed as a layperson would construe it. Furthermore, wills prepared by experienced attorney-draftspersons must be more strictly construed than instruments created by laypersons, and a greater latitude should be allowed in determining the testator's intention than if the will had been drawn by an experienced person. Thus, holographic wills drawn by unskilled drafters are given a liberal construction.

Perdue at 4.


Obviously, it is very important to have a will with abundantly clear language so there are no disputes about your intentions when you die.  However, in Tennessee the courts bend over backwards to try to best interpret the will to express the actual intentions of the testator.  However, this case shows what can happen if the will is unclear.  A lot of time and attorney’s fees are spent trying to decipher the intentions in the will (usually while two family members fight over this issue).  For this reason it is very important to have an experienced Tennessee attorney who knows have to draft proper wills to handle the drafting of these documents so there is no dispute over the contents of your will.  The famous expression “penny wise and pound foolish” is very true when it comes to wills.  So many people do not want to spend the money or time on the front end to get this done properly.  Instead they try to rely on internet or other free wills.  This can be a disaster.  A little money spent on the front end goes a long way to prevent major problems in the future.


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

TAGS: Holographic Will, Wills
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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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Phone: 615-540-1004
E-mail: jlee@burrowlee.com