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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.
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