The Tennessee legislature passed a law effective July 1, 2016, to address and overrule a recent Tennessee Court of Appeals decision that disallowed the enforcement of a will in which the witnesses had signed the affidavit attached to the will rather than the will itself. The Tennessee Court of Appeals decision was in the case of In Re: Estate of Bill Morris, 2015 WL 557970 (Tenn. Ct. App. 2015), which we covered in a prior legal update. The Court in the Morris case held the will was not valid where the witnesses signed only the affidavit. The Tennessee legislature has essentially reversed the Morris case by amending Tennessee Code Annotate § 32-1-104 to add subsection (b) below. The addition to this statute is copied below.
(b)(1) 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:
(A) The signatures are made at the same time as the testator signs the will and are made in accordance with subsection (a); and
(B) The affidavit contains language meeting all the requirements of subsection (a).
(2) 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 (b) shall affect, eliminate, or relax the requirement in subsection (a) that the testator sign the will.
Tenn. Code Ann. § 32-1-104 (West)
The addition to the statute overruled the Court’s decision in the Morris case and allows a will executed prior to July 1, 2016, in which the witnesses signed only the affidavit, to be upheld. However, if the witnesses signatures are on the affidavit only, the amendment to the statute makes it clear that such affidavit cannot serve as a self-proving affidavit. In the absence of a self-proving affidavit, the witnesses who signed the will at the time of its execution must provide affidavits at the time the will is admitted to probate. It may be difficult to track down the witnesses to a will, who may have since moved or passed away.
For wills executed after on or after July 1, 2016, drafters should exercise caution to ensure the will itself, and not just the affidavit, is signed by the required witnesses. It is important that a will is properly witnessed and executed. This demonstrates that estate planning has technical requirements that can easily be overlooked or misinterpreted. Thus, we always recommend that you have your estate plan prepared by a competent attorney. The attorneys at Wilson Worley are available to assist with all your estate planning needs.