Signature on Self-Proving Affidavit but Not on Will Falls Short of Statutory Requirements

In early 2015, the Tennessee Court of Appeals provided valuable guidance to practitioners on will execution requirements. The case of In re Estate of Bill Morris (2015 WL 557970, Tenn. Ct. App. 2015) concerned a will contest in which the children of the decedent challenged the validity of their father’s Last Will and Testament based on alleged noncompliance with T.C.A. § 32-1-104, which sets forth formal execution requirements that are required for a will to be valid:

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.

T.C.A. § 32-1-104.

For purposes of the Morris decision, no question was raised as to the validity of the testator’s signature.  2015 WL 557970 at *6. The question before the court focused solely on the fact that two attesting witnesses did not sign the will, but only the accompanying self-proving affidavit. Id. at *8.  As noted in Morris, “[w]hile the witness signatures required by 32-1-104 are mandatory for proper execution, the affidavit contemplated by 32-2-110 is permissive, and serves a separate function distinct from execution.” Id. at *11.

The proponents of the will argued that the affidavit should be treated as part of the will under the doctrine of integration. Id. at *16. However, because the witness signatures on the will and accompanying affidavit serve two different purposes under T.C.A. § 32-1-104 and T.C.A. § 32-2-110, respectively, the Court of Appeals disagreed. Id. at *11.  It ruled that “the signature of the witnesses on the affidavit, without having signed the will, does not satisfy the statutory formalities for executing a will in this state.”Id. at *19.  Because the witnesses did not sign the will itself and only signed the affidavit which is not mandatory under § 32-1-104, the court did not uphold the validity of the Will. Id. The will was not allowed to proceed to probate, and the testator was found to have died intestate. Id. at *20.