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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 Feb 4 2017 12:23PM by Attorney, Jason A. Lee
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A really interesting question was addressed
by the Tennessee Court of Appeals recently on whether an executor who submitted
a Will for probate and was appointed as executor can subsequently contest the
terms of the Will. The Tennessee Court
of Appeals in the case of In
Re: Estate of Ellra Donald Bostic, No. E2016-00553-COA-R3-CV, 2016 WL 7105213
(Tenn. Ct. App. 2016) dealt with the specific question of whether an
appointed executor can contest the Will that is being probated.
The Court noted that the legal doctrine that
applies is “estoppel”. The reason is
because “executors, as fiduciaries, owe a duty of undivided loyalty to the
Estate and must deal with the beneficiaries in the utmost good faith.” In re: Estate of
Wallace, 829 S.W.2d 696, 705 (Tenn. Ct. App. 1992). The named executor in a Will has “the duty to
both offer the Will for probate and defend the Will against any challenges to
its validity” citing Love v.
Cave, 622 S.W.2d 52, 57 (Tenn. Ct. App. 1981). The Court cited the most persuasive treatise
on Wills and Probate issues, Pritchard on Wills, which states that “if the
executor had knowledge of defects in the Will but nevertheless proceeded to
probate it then the executor is estopped from contesting the Will.” Bostic
at 4 (citing Pritchard on Wills § 364).
However, the Tennessee Court of Appeals has
also held that an executor is not estopped from challenging a Will after
presenting it to probate when “the executor offered the will for probate in
good faith and without knowledge of the defects in its execution.” Bostic
at 4 (citing McClure v.
Wade, 235 S.W.2d 835, 838 (Tenn. Ct. App. 1950). When this situation occurs, the executor must
resign from her position, and the “trial court should appoint an administrator
of pendente lite to take charge of the estate and represent it during the
pendency of the probate proceedings”. Bostic
at 4. The trial court must make a
determination as to whether the executor is estopped from challenging a Will
based on whether they knew of the defects of the Will at the time the executor
was appointed. This is the initial
threshold inquiry and once the Court makes that decision then the Court can determine
whether the estoppel doctrine applies. Bostic
at 4, 5. In this particular case
(Bostic case), the Court found that the trial court did not perform the proper
analysis and, in fact, shifted the burden on this issue inappropriately and
therefore the was remanded to the trial court to make a determination based on
the Court of Appeals s...
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Posted on Jul 4 2016 5:25PM by Attorney, Jason A. Lee
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The 2016 Tennessee
legislature passed Public
Chapter 843 and it changed Will execution witness requirements for certain
Wills executed prior to July 1, 2016.
This statute was passed in order to address a problem that came up due
to recent Tennessee Court of Appeals decision.
The Tennessee Court of Appeals decision was In
Re: Estate of Bill Morris, 2015 WL 557970 (Tenn. Ct. App. 2015). I previously blogged on this
case here. In the Morris
case, the Tennessee Court of Appeals found that witness signatures on the
Affidavit attached to the Will are not the same as having the witnesses actually
sign the Will. As a result, the Court
found that a Will is not valid when the witnesses only sign the Affidavit
attached to the Will.
The Tennessee legislature
essentially reversed this case by amending T.C.A. § 32-1-104. This amendment provides that for any Wills
executed prior to July 1, 2016, a witness signature affixed to an Affidavit
which meets all of the requirements for witnesses under Tennessee law shall be
considered signatures to the Will.
However, this statutory change requires that the signatures are made at
the same time the Testator signs the Will and that the Affidavit contains
language meeting all of the requirements of T.C.A. § 32-1-104(a). As a result, T.C.A. § 32-1-104 now reads as
follows (the new section that is added is subpart (b)):
(a) 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.
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Posted on Nov 1 2015 8:09PM by Attorney, Jason A. Lee
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One of the most common
ways that Tennessee Wills are contested is based on the theory of “undue
influence”. This is a broad category
where a will can be contested based on the theory that the person benefitting
from the Will exhibited influence over the decedent in an inappropriate manner. One example would be where a person
manipulated someone who had dementia or Alzheimer’s into changing their will
for that person’s direct benefit (often to the exclusion of other family
members).
In order to establish that a Will was
subject to “undue influence” in Tennessee, certain circumstances must be
present. This includes the following as
notes by the Tennessee Court of Appeals:
The suspicious
circumstances most frequently relied upon to establish undue influence are: (1)
the existence of a confidential relationship between the testator and the
beneficiary; (2) the testator's physical or mental deterioration; and (3) the
beneficiary's active involvement in procuring the will. In addition to
proof of a transaction benefitting the dominant person in a confidential
relationship, other recognized suspicious circumstances include: (1) secrecy
concerning the will's existence; (2) the testator's advanced age; (3) the lack
of independent advice in preparing the will; (4) the testator's illiteracy or
blindness; (5) the unjust or unnatural nature of the will's terms; (6) the
testator being in an emotionally distraught state; (7) discrepancies between
the will and the testator's expressed intentions; and (8) fraud or duress
directed toward the testator.
Kelley v. Johns, 96
S.W.3d 189 (Tenn. Ct. App. 2002). The burden of proof to establish
“undue influence” is on the individuals who are contesting the Will.
Tennessee courts have also provided the following helpful commentary on how “undue
influence” must be established in Tennessee:
Invalidating a will
because of undue influence is generally not a simple undertaking. While undue
influence can be proved either by direct or by circumstantial evidence, direct
evidence is rarely available. In re Estate of Maddox, 60 S.W.3d 84,
88 (Tenn. Ct. App. 2001). Thus, in most cases, the contestants establish undue
influence by proving the existence of suspicious circumstances warranting the
conclusion that the will was not the testator's free and independent act. Mitchell v. Smith, 779 S.W.2d 384,
388 (Tenn. Ct. App.1989). The courts have refrained from prescribing the type or
number...
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Posted on Sep 27 2015 2:43PM by Attorney, Jason A. Lee
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One way to contest a
will in Tennessee is to assert that the decedent had a “lack of testamentary
capacity”. Basically, this is an
assertion that the individual who executed the will was not actually competent
to execute the will. Tennessee has many
cases that discuss this claim in the context, most often, of a will contest
situation.
The Tennessee Court of Appeals has said the
following about what is required to establish “lack of testamentary capacity”
contest to a will:
The law requires
that the testator's mind, at the time the will is executed, must be
sufficiently sound to enable him or her to know and understand the force and
consequence of the act of making the will. American Trust &
Banking Co. v. Williams, 225 S.W.2d 79, 83 (1948). The testator must have
an intelligent consciousness of the nature and effect of the act, a knowledge
of the property possessed and an understanding of the disposition to be made.
Goodall v. Crawford, 611 S.W.2d 602, 604 (Tenn. App. 1981). While evidence
regarding factors such as physical weakness or disease, old age, blunt
perception or failing mind and memory is admissible on the issue of
testamentary capacity, it is not conclusive and the testator is not thereby
rendered incompetent if her mind is sufficiently sound to enable her to know
and understand what she is doing. American Trust, supra; 79 Am.Jur.2d Wills §
77 (1975).
If the individual who
executes a Will does not meet the above factors, then the Will can be attacked
under a theory of “lack of testamentary capacity”. Medical evidence and testimony is best to be
able to attack a Will under this theory.
If a doctor is willing to testify that the individual did not appreciate
what they were doing at the time of the Will, then that could form a strong
basis to defeat a Will. One thing you can do to prevent a Will contest over this issues is to have a doctor assess the individual around the time they do their Will to make sure they have the mental capacity to make a will.
If you are going
to pursue this kind of theory in Tennessee, then you need a competent Tennessee
litigation attorney who handles Will contest cases in a probate litigation
setting.
Follow me on Twitter at @jasonalee
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Posted on Aug 15 2015 10:49AM by Attorney, Jason A. Lee
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In Tennessee, a party
who is going to contest a will must have proper “standing” to actually contest
the will. This basically means that the
individual must have the authority under Tennessee Law to contest the will
before they can do so. If they do not
have proper standing, then the Court will simply dismiss the case. Tennessee Courts have provided guidance on
who has standing to contest a will.
The Tennessee Court of
Appeals in Keasler
v. Estate of Keasler, 973 S.W.2d 213 (Tenn. Ct. App. 1997) found that “in
order to have standing to contest a will, the contestant must show that he
would take a share of the decedent's estate if the probated will were set
aside.” What this means is that if there
is a prior will that has not been probated, and that will is being put forward
as the actual “real will” then the person who is contesting the will must actually
be able to recover something in the prior proposed will. If they are not a beneficiary or even named
in the prior will, they simply will not have standing to contest the will.
In the alternative, if a person is
contesting a will as fraudulent or subject to undue influence, but there is no
other prior proposed will, then to have standing the person must show they are
entitled to recover money under the intestacy laws of Tennessee. The intestacy laws of
descent apply to show who gets a persons property if there is no will. It is not enough to be a good intentioned family
member, friend or close loved one of the decedent. In order to contest a will under Tennessee
law you must actually have the legal right to do so.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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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 20 2014 10:12PM by Attorney, Jason A. Lee
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The Tennessee Court of Appeals decision of
In
re: Estate of John Leonard Burke, No. M2012-01735-COA-R3-CV, 2013 WL 2258045 (Tenn.
Ct. App. 2013) dealt with a situation where a will was submitted to probate
in solemn form on December 19, 2011. The
trial court noted at that time that all potential beneficiaries had been served
with notice of the hearing and that no objection was filed to the probate of
the will. On June 8, 2012, the
deceased’s stepson filed a challenge to the will alleging that the will was
“procured by the fraudulent inducement” of the deceased’s wife. As a result, the question was whether this challenge,
instituted approximately six months after the will was probated in solemn form,
could be brought at that point.
The Tennessee Court of Appeals ultimately
held that when a will is submitted in solemn form under T.C.A.
§ 30-1-117(b) “a will contest must be initiated, if at all, prior to the
entry of the final order admitting the will to probate in solemn form, not
prior to the final order closing the estate.”
Burke
at 5. Due to the fact the stepson in
this case did not challenge the will until after the entry of the order
entering the will in solemn form, the will contest was dismissed as
untimely.
Submitting a will in “solemn form” can be
beneficial in certain circumstances although it is not necessarily justified in
every case. It can be beneficial if
there is concern that one of the beneficiaries may want to contest the will at
some point. This can be a good strategy
to force them to act rather quickly on the front end or forever lose the
opportunity to contest the will.
On the other side of things, if a party...
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Posted on Mar 13 2013 4:19PM by Attorney, Jason A. Lee
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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.
...
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.
T.C.A. § 32-2-104(b) also provides a way to have the witnesses who signed the will (that live outside of Te...
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