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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.
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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 Tennessee or the county where the will is probated) to prove the will by interrogatories or depositions as opposed to appearing in person. This statute provides as follows:
(b) Upon petition of any interested party, the court, in its discretion, may permit the proof of any subscribing witness who is outside of the state or county or who is unable to testify in person, to be taken by interrogatories or deposition in the same manner as provided in chancery cases. For the purpose of taking interrogatories or depositions a photostatic copy of the original will may be furnished to the witness, or in the discretion of the court, the original will may be withdrawn and used in the manner prescribed by § 32-2-103.
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