Can You Have a Handwritten Will in Tennessee – and Should You?

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:

Do Tennessee Courts Recognize Handwritten Wills?

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...

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

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...

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.

What is a holographic will under Tennessee law?