Can an individual who benefits under a will serve as a witness to the execution of a will in Tennessee?

Posted on Jul 7 2013 10:41PM by Attorney, Jason A. Lee

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. § 32-2-110 provides that an attesting witness to a will may sign an affidavit stating the facts that would be later required to provide a will in court in a probate proceeding (they can do this at the time of the execution of the will or at a later date).  T.C.A. § 32-2-110 provides as follows:


Any or all of the attesting witnesses to any will may, at the request of the testator or, after the testator's death, at the request of the executor or any person interested under the will, make and sign an affidavit before any officer authorized to administer oaths in or out of this state, stating the facts to which they would be required to testify in court to prove the will, which affidavit shall be written on the will or, if that is impracticable, on some paper attached to the will, and the sworn statement of any such witness so taken shall be accepted by the court of probate when the will is not contested as if it had been taken before the court.


This is an important thing to have in every will.  The individuals who witness the will as attesting witnesses should execute an affidavit at the time the will is executed in order to establish the essential requirements for the probate of the will at a later date.  This will make it much easier to establish the will properly under Tennessee law in probate court.


Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

TAGS: Probate Process, Wills, Witnesses to will, Execution, Tennessee Probate Law
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Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com