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:

Tennessee Allows Signatures on Affidavit to Will to Satisfy Statutory Witness Signature Requirement for Wills Executed Prior to July 1, 2016

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.

Signatures of Witnesses to Will on Affidavit, but Not on Actual Will Does Not Comply with Tennessee Law

A recent Tennessee Court of Appeals’ decision of In re Estate of Bill Morris, No. M2014-00874-COA-R3-CV, 2015 WL 557970 (Tenn. Ct. App. 2015) discussed the requirements for witness signatures on a Tennessee will.  T.C.A. § 32-1-104 has very specific requirements for the execution of a will under Tennessee law.  These requirements are 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.

In the Morris case, the witnesses signed an affidavit attached to the will that attested the will but they did not actually sign on the will document.  The question, therefore, in this case was whether this will complied with Tennessee law and was a valid will to be admitted for purposes of establishing the decedent’s wishes.

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...

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.

...

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...