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Posted on Jul 30 2017 3:20PM by Attorney, Jason A. Lee
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Some people decide to
do Wills that are written in their own handwriting (handwritten Wills). It is my advice that this is a very poor
decision and you should always consult a Tennessee Wills attorney to help you make
sure that this very important document is done correctly. Even though that is my best advice, I know
some people will ignore this advice. As
a result, I will answer the question.
Yes, you can have a handwritten Will but it is a very bad idea. A handwritten will is called a holographic
Will. A holographic will must be done in
the handwriting of the testator.
There are three
different types of Wills under Tennessee law that are allowed.
(1) Normal Will with
execution completed pursuant to T.C.A. § 32-1-104.
(2) Holographic Will
pursuant to T.C.A. § 32-1-105 (in handwriting of
the testator)
(3) Noncupative Will
pursuant to T.C.A. § 32-1-106 (will completed while
in imminent peril of death)
Under Tennessee law a handwritten
or holographic Will must comply with the specific requirements found in T.C.A. § 32-1-105 which provides as
follows:
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Posted on May 11 2014 10:28PM by Attorney, Jason A. Lee
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The short answer to this questions is
simply yes, you can have a handwritten Will in Tennessee. That is as long as it complies with the
requirements for a holographic Will under Tennessee law. The requirements for a holographic Will are
found in T.C.A.
§ 32-1-105 which states,
No witness to a
holographic will is necessary, but the signature and all its material
provisions must be in the handwriting of the testator and the testator's
handwriting must be proved by two (2) witnesses.
Therefore, if someone is going to have a
handwritten Will in Tennessee, the important or “material” provisions in the Will
must be entirely in the testator’s handwriting.
Additionally, the individual who made the Will must actually sign the
Will. Ultimately, the handwriting of
the person who made the Will must be proved in Court by two witnesses. If all these requirements are met, then a
handwritten Will can be deemed valid in Tennessee.
Now I need to get on my soapbox. Just because you can do your own handwritten
will does not mean that this should be done.
I do not recommend that anyone prepare their own handwritten Will. There are simply too many mistakes that can
happen in this process. There are many
unintended consequences when people try to “save money” and do their own
handwritten Will. Tennessee law is
filled with examples of significant mistakes that were unintentionally made by people
who try to draft their own wills. Unfortunately,
at the point these mistakes are discovered, it is too late to correct the mistakes. As a result, I recommend that everybody in
Tennessee should have a Will done by a competent Tennessee Wills attorney. It is not that...
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Posted on Apr 13 2014 9:13PM by Attorney, Jason A. Lee
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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 di...
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Posted on Mar 1 2013 9:31AM by Attorney, Jason A. Lee
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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.
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Posted on Feb 28 2013 11:16AM by Attorney, Jason A. Lee
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A holographic will is one that is done in the handwriting of the testator. There are three different types of wills under Tennessee law.
(1) Normal will with execution completed pursuant to T.C.A. § 32-1-104.
(2) Holographic will pursuant to T.C.A. § 32-1-105 (in handwriting of the testator)
(3) Nuncupative will pursuant to T.C.A. § 32-1-106 (will completed while in imminent peril of death)
Under Tennessee law a holographic will must comply with the specific requirements found in T.C.A. § 32-1-105 which provides as follows:
No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator's handwriting must be proved by two (2) witnesses.
As a result, for a holographic will to be valid it must have the signature of the testator. Additionally, all of the material provisions in the will must be in the actual handwriting of the testator. Further, the testator's handwriting in the holographic will must be proved to be the testator’s by two witnesses. If these requirements are met than a holographic will will be valid under Tennessee law.
It is still better to have a Tennessee attorney who is experienced in drafting wills handle the formation of the will documents.
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