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

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.

Can an individual who benefits under a will serve as a witness to the execution of a will in Tennessee?

An individual who benefits under a will can serve as an attesting witness to the execution of a will, however, there is a great risk they will forfeit some or all of the benefits they would recover under the will.  T.C.A. § 32-1-103(a) directs that "any person competent to be a witness generally in this state may act as attesting witness to a will."  However, T.C.A. § 32-1-103(b) provides there is a great risk for an individual who will inherit under a will to serve as a witness to the signing of a will by the testator.  This statute provides as follows:

(b) No will is invalidated because attested by an interested witness, but any interested witness shall, unless the will is also attested by two (2) disinterested witnesses, forfeit so much of the provisions therein made for the interested witness as in the aggregate exceeds in value, as of the date of the testator's death, what the interested witness would have received had the testator died intestate.

As a result, it is always best practice for any individual who would or could inherit under a will to not serve as a witness to the execution of the will by the testator.  The exclusion is not absolute but it is simply best practice to not serve as a witness under this circumstance.  T.C.A. § 32-1-103(c) defines what individuals are considered to be "interested" under the statute as follows:

(c) No attesting witness is interested unless the will gives to the attesting witness some personal and beneficial interest.

Additionally, T.C.A. § 32-2-1...

What is a durable power of attorney for healthcare under Tennessee law?

A durable power of attorney for healthcare is a document that provides powers to an “attorney-in-fact” to make healthcare decisions for the person executing the document (called the “principal”) if they become incapacitated.  There is not requirement for the “attorney-in-fact” to be an attorney; rather he or she can be a spouse, child or anyone the principal desires.  This document is mainly used to provide powers to a specific individual for the purpose of making healthcare decisions for the principal in case that individual is no longer able to make those decisions.

In Tennessee there are specific requirements for a durable power of attorney for healthcare to be effective.  They are found, in part, in T.C.A. § 34-6-203(a) which provides as follows:

(a) An attorney in fact under a durable power of attorney for health care may not make health care decisions unless all of the following requirements are satisfied:

(1) The durable power of attorney for health care specifically authorizes the attorney in the fact to make health care decisions;

(2) The durable power of attorney for health care contains the date of its execution; and

(3) The durable power of attorney for health care must be in writing and signed by the principal. The durable power of attorney for health care is valid if the principal's signature is either attested by a notary public with no witnesses or witnessed by two (2) witnesses without attestation by a notary public. A witness is a competent adult, who is not the agent, and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the durable power of attorney for health care or by operation of law then existing. The durable power of attorney for health care shall contain an attestation clause that attests to the witnesses' compliance with the requirements of this subdivision (a)(3). It is the intent of the general assembly that this subdivision (a)(3) have retroactive application.

The first requirement is the document must actually authorize the attorney-in-fact to make healthcare decisions.  The second requirement is the durable power of attorney for healthcare must contain the date it is executed.  The third requirement is the document must be in writing and signed by the principal.  The principal’s signature must either be attested by a notary public with no witnesses, or it must be witnessed by two witnesses without an attestation by a notary public. 

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Can an individual execute a "living will" under Tennessee law?

Tennessee law allows the execution of a "living will" according to the "Tennessee Right to Natural Death Act" which was passed in 1985.  The living will allows you to make the decision to not be kept alive by artificial means if you have a terminal condition and there is no expectation of recovery.   T.C.A. § 32-11-102 discusses the legislative intent in allowing living wills under Tennessee law.  This statute provides as follows:

(a) The general assembly declares it to be the law of the state of Tennessee that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person's own medical care, specifically including palliative care and the use of extraordinary procedures and treatment. The general assembly further declares that it is in the public interest to facilitate recovery of organs and/or tissues for transplantation and to provide mechanisms for individuals to express their desire to donate their organs and/or tissues.

(b) The general assembly does further empower the exercise of this right by written declaration, called a “living will,” as provided in this chapter.

T.C.A. § 32-11-105 provides a form for a living will under Tennessee law.  This statute provides a form that is acceptable under Tennessee law for a living will.

Additionally, T.C.A. § 32-11-104 provides specific requirements for the execution of a living will.  An executed living will can be signed by "any competent adult person" under T.C.A. § 32-11-104.  The declaration must be in writing and signed by the principal and is valid if it is attested by a notary public with no witnesses or witnessed by two witnesses without an attestation of a notary public.  If the witness method is used then at least one of the witnesses must not be related to the individual executing the living will document. 

Can an out-of-state will be probated in Tennessee?

Tennessee law provides that wills that are executed outside of Tennessee are valid in three possible scenarios.  The first is if the will complied with the execution requirements for a will under Tennessee law.  The second is if the will complied with the execution requirements for the state where the will was executed.  The third is if the will complied with the execution requirements of the testator’s domicile at the time of execution. 

T.C.A. § 32-1-107 provides as follows:

A will executed outside this state in a manner prescribed by §§ 32-1-101 -- 32-1-108, inclusive, or a written will executed outside this state in a manner prescribed by the law of the place of its execution or by the law of the testator's domicile at the time of its execution, shall have the same force and effect in this state as if executed in this state in compliance with those sections.

As a result, a will that is drafted in another state can be valid in Tennessee as long as it complies with one of the three options in this statute.  Also, under option number three, it is important to be able to determine a persons “domicile” under Tennessee law to figure out what jurisdiction is referred to in this statute.  The Tennessee Court of Appeals has discussed Tennessee law on the determination of a persons domicile as follows: 

when used to refer to a person's domicile or legal residence, the term indicates a particular place where a person has a permanent home and to which the person has a concurrent intention to return and to remain.  A person may have more than one residence but may have only one domicile or legal residence.

A person cannot acquire a new domicile or legal residence without first abandoning another.  Accordingly, to change domicile or legal residence, a person must: (1) actually change his or her residence to a new place; (2) intend to abandon his or her old domicile; and (3) intend to establish a new domicile at the new residence.  A person who is mentally incompetent cannot voluntarily change domicile or legal residence because he or she does not have the requisite intent either to abandon their old domicile or to acquire a new one.

How is a last will and testament proved as valid in probate court in Tennessee?

T.C.A. § 32-2-104 provides requirements for establishing proof of a proper will under Tennessee law.  Specifically, T.C.A. § 32-2-104(a) provides as follows:

(a) Written wills with witnesses, when not contested, shall be proved by at least one of the subscribing witnesses, if living. Every last will and testament, written or nuncupative, when contested, shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to support it.

As a result, if the will is not contested by anyone then at least one of the witnesses, if living, must prove the will.  If the will is contested then all of the living witnesses that can be found must prove the will.  It is important to know that once prima facie evidence is submitted that a will is valid, the Tennessee Supreme Court has found that the burden to disprove the validity of the will then shifts to anyone who is contesting the will.  The Tennessee Supreme Court in Jackson v. Patton, 952 S.W.2d 404, 407 (Tenn. 1997) (citing Whitlow v. Weaver, 478 S.W.2d 57 (Tenn. Ct. App. 1970)) discussed this burden shifting when a will is contested as follows:

[T]he general rule is that the proponents of a will establish a prima facie case as to its due execution when the genuineness of the signatures of the testator and subscribing witnesses along with an attestation clause containing recitations of due execution is shown. Such a prima facie case in favor of the due execution of a will is not abandoned by presenting testimony of living witnesses which is otherwise.

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Thus it is held that by virtue of the presumption the burden of going forward with the evidence shifts from the proponent of the will whose execution is at issue to the contestants.  The presumption is rebuttable, but it is established that, to overcome the presumption, the contestant must present “clear and satisfactory” proof of lack of due execution.

What are the requirements for the execution of a will under Tennessee law?

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 t...

How does an individual revoke a will under Tennessee law?

In Tennessee a will or any part of a will can be revoked by the testator under certain circumstances.  T.C.A. § 32-1-201 provides as follows:

A will or any part thereof is revoked by:

(1) A subsequent will, other than a nuncupative will, that revokes the prior will or part expressly or by inconsistency;

(2) Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will, that revokes the prior will or part expressly;

(3) Being burned, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking it, by the testator or by another person in the testator's presence and by the testator's direction; or

(4) Both the subsequent marriage and the birth of a child of the testator, but divorce or annulment of the subsequent marriage does not revive a prior will.

As a result, there are four basic ways to revoke a will.  (1) Subsequent will; (2) Document revoking the prior will (must be executed with formalities of will execution); (3) Destroy the will with intent to revoke; (4) Subsequent marriage and the birth of a child. 

When drafting a will it is always best to make sure that the will explicitly states that all prior wills and codicils to any wills are revoked by the execution of the subsequent will.  If a testator truly desires to revoke a will, the testator should do this expressly in a subsequently drafted will document that is properly executed under Tennessee law.  It is not good practice to simply rely upon the trashing or destruction of a will because “intent” must exist and that can certainly cause disagreements between potential heirs. 

One other provision that may not be considered very often is subpart (4) which provides that a subsequent marriage and the birth of a child of the testator revokes a prior will.  Overall it is best to have a Tennessee wills attorney assist you with any revocation of a will document.  This should be done in conjunction with the drafting of a new will.