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Tennessee Appeals Court Reviews Witness Requirements for Validly Executed Will
Posted by Martin Heller Potempa & Sheppard, PLLC on August 30, 2017
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A last will and testament is generally valid if it meets certain statutory requirements. In an August 15, 2017 Tennessee estate case, the son of the decedent contested the validity of the will submitted into probate for his father. The affidavit attached to the purported will was signed, in the presence of the testator, by two witnesses. After a hearing, the trial court held that the will and accompanying affidavit were not in strict compliance with the statute and denied admission of the will to probate. The proponent of the executed will, the decedent’s wife, appealed that decision to the Court of Appeals of Tennessee.
In Tennessee, a will must be signed by the testator and at least two witnesses. The testator must signify to the witnesses that it is his will and either sign the will, acknowledge that he already signed the will, or have someone else sign his name while in the testator’s presence. The witnesses must then sign in the presence of the testator and each other.
In 2016, the Tennessee legislature amended the law to allow for a separate affidavit containing the witnesses’ signatures to be integrated into a will executed prior to July 1, 2016, as long as the signatures were made at the same time as the testator signed the will. If the witnesses signed the affidavit on the same day as the testator, it is presumed that they signed at the same time, unless there is convincing evidence otherwise.
The trial court had held that the witnesses’ signatures were not integrated into the will because the affidavit was silent as to the decedent’s capacity to execute the will. On appeal, however, the court explained that the law does not require the accompanying affidavit to contain a statement concerning the testator’s capacity. Furthermore, the capacity of the testator is presumed unless the contrary is shown.
The appeals court noted that the decedent’s son never questioned the father’s capacity and that no proof was presented that the decedent lacked capacity at the time he signed the will. Instead, three witnesses had testified at the hearing that the decedent was of sound mind when he executed the will. Accordingly, the appeals court concluded that the affidavit with the witnesses’ signatures was integrated into the will.
The decedent’s son also argued that one of the witnesses did not see the testator sign the will since her desk was partitioned from that area by a small wall. The appeals court disagreed, explaining that since a testator may acknowledge a signature already made, there is no requirement that the witnesses actually see the testator make his signature on the will. Concluding that the decedent’s 2013 will was validly executed, the court admitted it into probate.
At Martin Heller Potempa & Sheppard, our Nashville attorneys can provide legal guidance and help navigate you through the estate planning process. We handle probate administration as well as establishing trusts, drafting wills, and litigating estate disputes for our clients. Schedule an appointment to discuss your legal needs with one of our estate attorneys by calling (615) 800-7096 or submitting our contact form online.
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