WILLS

Jake Nemer, Wills Attorney

In Tennessee, “the right to make a will and to dispose of property as one chooses is not absolute.” Calhoun v. Campbell, 763 S.W.2d 744 (Tenn. 1988).  Courts frequently refer to the act of making a will as a “privilege,” one which, once exercised, “does not lie within the province of the General Assembly to change the expressed intention of the testator.” Id. Unless the terms of your will are illegal or violate public policy, the courts typically will not invalidate them.  However, if your will is not validly executed, the courts in Tennessee will not hesitate to treat your will as if it never existed.

“Validly executed” means your will must be executed in strict accordance with the Tennessee Execution of Wills Act of 1941.  One of the earliest examples of a Tennessee court invalidating a will for failure of valid execution comes from 1948.  In Fann v. Fann, 208 S.W.2d 542 (Tenn. 1948), the court applied what is now codified as Tennessee Code Annotated Sections 32-1-104(2)(A)-(B), which state that “attesting witnesses must sign in the presence of the testator and in the presence of each other.”

The will in question contained an attestation clause stating that the attesting witnesses “certify that [they] signed [their] names hereto as witnesses of the will of John Lee Fann at his request and in his presence and in the presence of each other.” When the case went before the Tennessee Supreme Court, however, neither of the attesting witnesses could positively testify as to whether or not the other witness was present at the time each signed the will.  Accordingly, the court ruled the will was invalid.

A subsequent Tennessee decision further illustrates how strictly the courts apply the Execution of Wills Act.  In Ball v. Miller, 214 S.W.2d 446 (Tenn. Ct. App. 1948), the court held that even an act of God does not excuse the fact that a will was not executed in strict accordance with the law.  In Ball, the testator, on her death bed, was prepared to execute her will in the presence of two witnesses.  After the first witness signed, but before the second witness signed, the testator suddenly died.  Thus, the second witness did not sign in the presence of the testator, as required by law.  The Court of Appeals of Tennessee ultimately affirmed a lower court decision vacating and setting aside the probate of the will, stating that “certain acts required in the execution of wills we view as mandatory and an instrument does not attain the character admissible to probate unless and until they are performed.”

Tennessee law is riddled with technicalities and those regarding attesting witnesses are just one example of how strictly the law is applied.  Executing all written documents in accordance with the Tennessee Execution of Wills Act is vital to ensuring that your property is distributed according to your wishes.

 

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