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.
(2) The attesting witnesses must sign:
(A) In the presence of the testator; and
(B) In the presence of each other.
(b) For wills executed prior to July 1, 2016, to the extent necessary for
the will to be validly executed, witness signatures affixed to an affidavit
meeting the requirements of § 32-2-110
shall be considered signatures to the will, provided that:
(1) The signatures are made at the same time as the testator signs the
will and are made in accordance with subsection (a); and
(2) The affidavit contains language meeting all the requirements of
subsection (a). If the witnesses signed the affidavit on the same day that the
testator signed the will, it shall be presumed that the witnesses and the
testator signed at the same time, unless rebutted by clear and convincing
evidence. If, pursuant to this subsection (b), witness signatures on the affidavit
are treated as signatures on the will, the affidavit shall not also serve as a
self-proving affidavit under § 32-2-110.
Nothing in this subsection shall affect, eliminate, or relax the requirement in
subsection (a) that the testator sign the will.
Interestingly, this
statute only applies to Wills executed prior to July 1, 2016. As a result, this is not a statute that
should be relied upon for Wills following July 1, 2016. In fact, this statute should not be relied
upon at all for any Wills that are drafted.
This statute is designed to correct prior Wills that are invalid under
the Morris
case.
As always, when having
a Will drafted and executed, it is very important to have an experienced
Tennessee Wills attorney involved in that process. There are many pitfalls that can come up due
to the statutory language. When considering
the relatively minimal cost to have a Will done in Tennessee, is better to pay
that cost than to have significant litigation and disputes over the validity of
a Will because of technical deficiencies.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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