“Close don’t count in baseball. Close only counts in horseshoes and hand grenades.”
– Hall of Fame baseball player Frank Robinson[1]

When is a will not a will, even when the testator, witnesses and drafting lawyer intend it to be a will? When the statutory requirements for execution are not strictly followed. The Tennessee Court of Appeals recently reiterated that point in In re Estate of Morris.[2] The opinion should lead lawyers to check their will forms and clients’ existing wills to make sure they comply with the statute of wills.

Bill Morris Sr. purported to execute a will leaving his estate to two of his four living children and three of his four grandchildren by a deceased fifth child. Mr. Morris’s signature appeared at the end of the body of the will, immediately followed by the caption “Affidavit.” Underneath “Affidavit” appeared testimony from putative witnesses, followed by the witnesses’ signatures and then a notary acknowledgement.[3] The witnesses signed nowhere else.

Mr. Morris’s two children who were omitted from the will filed a will contest, arguing that the will was invalid due to improper execution. At issue was whether the witnesses signed the will in attestation, which is mandatory,[4] or signed a self-proving affidavit, which is optional.[5] If they signed the will but not a self-proving affidavit, the will was validly executed but should not have been admitted to probate until the proponents produced affidavits of proof (or live testimony) from the attesting witnesses. If the witnesses signed only a self-proving affidavit, an essential element of will execution was missing.

Can witness signatures on a self-proving affidavit, signed at the same time as the testator signed the will and claiming that the witnesses signed the will, be treated as signatures on the will? Does it matter that the testator and the witnesses intended valid will execution?

Is close good enough, i.e., will Tennessee (as several states have done) apply a “substantial compliance” standard rather than “strict compliance?”[6]

Morris was controlled by two prior cases. In In re Estate of Stringfield,[7] the testator signed the will but the witnesses signed only a self-proving affidavit. It is unclear whether the witnesses signed the affidavit on the same day the testator signed the will or at a later date. The Court of Appeals ruled that absence of the necessary witness signatures on the will invalidated the will.

In the 2012 Tennessee Supreme Court case In re Estate of Chastain,[8] even though the testator initialed the first two pages of the will and signed the self-proving affidavit on the same day as the witnesses signed the will, the absence of the testator’s signature at the end of the will invalidated the will. The court held that Tennessee requires strict compliance with will execution formalities. Close is not good enough.

Chastain tells us that signing the self-proving affidavit cannot be treated as signing the will: “By requiring the affidavit to ‘be written on the will or, if that is impracticable, on some paper attached to the will,’ Tenn. Code Ann. § 32-2-110, a clear distinction is drawn between an affidavit of attesting witnesses and a will.”[9] The Supreme Court declined to adopt the doctrine of integration, by which the affidavit could be deemed a part of the will.[10] The will and the self-proving affidavit are legally separate and distinct documents.

In Morris, the witnesses clearly signed on the same day as the testator did and the “Affidavit” began on the same page as the testator’s signature. The Court of Appeals found that neither fact made the witnesses’ signatures on the affidavit proper attestation of the will. The opinion notes that the statute expresses a preference (but not a requirement) for the self-proving affidavit to begin on the same page as the end of the will.

The fact that a lawyer drafted the documents required legal words to be honored: “Where a will is drafted by a lawyer, technical words used therein must be given technical meanings … and [e]very word used by the testator is presumed to have some meaning.”[11] Use of the title “Affidavit” meant that what followed was an affidavit, and the reference in the affidavit to the “foregoing” will was evidence that the affidavit was preceded by, not a part of, the will.[12]  Because the witnesses signed only a self-proving affidavit and failed to sign the will, the will was found to be invalid.

Is this result fair to Mr. Morris and the intended beneficiaries of the will? A substantial compliance standard surely would work a fairer result in many cases where intention to make a will can be proved. However, a strict compliance standard reflects the General Assembly’s public policy choice to reduce litigation. A “close is good enough” standard would encourage wide variation in will formats and execution procedures, leading to an endless procession of litigated cases to determine which purported wills are good enough.

In the three legislative cycles since Chastain, the General Assembly has not adopted a substantial compliance standard or the doctrine of integration, or otherwise relaxed the statutory requirements for executing a will.

What should lawyers do in light of Stringfield, Chastain and Morris? First, check the execution language in your will forms. If there is any question whether all necessary elements are present, modify the forms.[13] Consider referring to “this will” in the attestation clause and “the will” or “the foregoing will” in the self-proving affidavit. Make sure the testator signs the will above the attestation clause and that the witnesses sign twice, once on the will and once on the self-proving affidavit. No shortcuts.

Second, check whether any of your clients’ previously executed wills fail to comply with the statute of wills. If so, contact the affected clients and suggest that they sign new wills (hoping that all such clients are still living and competent to do so).[14]

Third, make sure your office meticulously follows a uniform procedure every time a will is executed. If you are ever called to be a witness regarding the execution of a specific will, you likely won’t remember that occasion specifically, but can testify that your firm does it the same way every time, without exception.

Perhaps one day the General Assembly will relax will execution standards. Until then, close counts only in horseshoes, hand grenades — and substantial compliance states.

Notes

1. “More Info on Frank Robinson,” ESPN Classic, http://espn.go.com/classic/000728frankrobinsonadd.html, citing Time magazine (July 31, 1973).
2. In re Estate of Morris, 2015 Tenn. App. LEXIS 62, cert. denied, No.  M2014-00874-SC-R11-CV (Tenn. June 15, 2015).
3. The relevant portions of the will are reproduced in the Court of Appeals opinion at http://tncourts.gov/sites/default/files/inreestateofmorrisopn.pdf.
4. Tenn. Code Ann. section 32-1-104, which has remained largely unchanged for more than seven decades, provides as follows:
   The execution of a will, other than a holographic or nuncupative will, must be by the signature of the testator and at least two 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 attesting witnesses.
   2. The attesting witnesses must sign:
      (A) In the presence of the testator; and
      (B) In the presence of each other. (Emphasis added.)
5. Tenn. Code Ann. section 32-2-110 allows the use of a “self-proving affidavit” in lieu of the witnesses’ live testimony to establish the facts necessary to admit the will to probate:
   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 witnesses 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. (Emphasis added.)
6. See Dan Holbrook, “Questionable Will Executions: Should ‘Substantial Compliance’ Suffice?,” Tennessee Bar Journal, April 2012, https://www.tba.org/journal/questionable-will-executions-should-substantial-compliance-suffice, for discussion of the strict compliance and substantial compliance standards.
7. In re Estate of Stringfield, 283 S.W.3d 832 (Tenn.Ct.App. 2008).
8. In re Estate of Chastain, 401 S.W.3d 612 (Tenn. 2012).
9. Id., at 620.
10. See In re Estate of Morris, 2015 Tenn. App. LEXIS 62, at *8-9, citing In re Estate of Chastain, 401 S.W.3d 612, 622 (Tenn. 2012):
    In essence, Appellees are asking this Court to apply the doctrine of integration by which “a separate writing may be deemed an actual part of the testator’s will, thereby merging the two documents into a single instrument.” In re Will of Carter, 565 A.2d 933, 936 (Del. 1989). In In re Estate of Chastain, 401 S.W.3d 612 (Tenn. 2012), the Tennessee Supreme Court held that the decedent’s signature on the affidavit did not satisfy the statute requiring the testator’s signature on a will. The Chastain court explained that, in these types of cases, Tennessee has not adopted the doctrine of integration “because doing so would amount to a relaxation of statutory requirements.”
11. Id., at *6-7, quoting Daugherty v. Daugherty, 784 S.W. 2d 650, 653 (Tenn. 1990).
12. Referring to the “foregoing” will in the attestation clause need not be fatal. Tennessee Legal and Business Forms, section 28:273, does so, but explicitly says the clause is part of the will: “the foregoing instrument, consisting of [____] pages, including the page on which we have signed as witnesses. …” 4 Tenn. Legal & Bus. Forms, § 28:273.
13. When using commercial forms, take care to understand how the forms are structured. Form resources routinely provide complete and partial will forms. Some include an attestation clause and self-proving affidavit, but others, to avoid repetition, require the user to add those elements from another form.
14. Also contact your malpractice insurance carrier if required under the policy.

EDDY R. SMITH practices trust and estate law with Holbrook Peterson Smith PLLC in Knoxville. He is a fellow of the American College of Trust and Estate Counsel and past chair of the Tennessee Bar Association Estate Planning and Probate Section. He can be reached at edsmith@hpestatelaw.com.