The Importance of Witness Signatures on a Will

A validly executed will not only allows individuals to express their wishes, but also allows a court to uphold a will if contested by disgruntled family members. Tennessee is a strict compliance state meaning that if Tennessee’s statutory will execution requirements are not met, then the will may be deemed invalid.

In addition to requiring two witnesses to a will signing, Tennessee law permits the two witnesses to execute a “self-proving” affidavit further acknowledging that the will was executed in accordance with Tennessee statute. One benefit to executing a self-proving affidavit is that in most instances it eliminates the requirement that a witness later testify in court to authenticate the will.

In the recent Tennessee Court of Appeals’ case Parker v. Parker, the witnesses failed to sign the body of the will, but managed to sign the attached self-proving affidavit. Upon Mr. Parker’s death, the will was contested and the trial court invalidated the will ruling that the sole presence of witness signatures on a self-proving affidavit do not satisfy the legal requirements for a valid execution of a will under Tenn. Code Ann. §32-1-104.

While the trial court’s ruling was pending appeal, however, the Tennessee General Assembly passed an amendment retroactively revising the statute that would validate the Parker will. Public Chapter No. 843 (the “Act”) amends Tenn. Code Ann. §32-1-104 to construe wills executed prior to July 1, 2016 with “witness signatures affixed to an affidavit” to be deemed signatures to the will itself, provided such signatures meet the requirements of a validly executed self-proving affidavit and the signatures were made at the same time as the testator.

The Act seems to apply directly to the specific situation seen in the Parker case. As the case reached the Court of Appeals of Tennessee in January of 2017, the Court faced the determination whether: 1) the Act applies to Parker’s case; and 2) whether the Act itself is constitutional. While the Court said parties generally cannot raise an issue for the first time on appeal, the Court nevertheless held that these were “unique circumstances” since the Act was enacted while the case was pending appeal. As such, the Court vacated the original judgment and directed the trial court to consider the issue on remand.

The Appeals Court appears to have given the Parker will a second chance at life. If, however, anything is to be learned from this will contest it is incredibly important to ensure that your estate planning documents not only are drafted in accordance with Tennessee law, but also executed in accordance with Tennessee law. Engaging an experienced attorney in the area of estate planning and estate administration will help ensure your will is validly executed and will be carried out by the courts should it be contested.

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