TBA Law Blog

Posted by: Josh McCreary on Sep 1, 2016

Journal Issue Date: Sep 2016

Journal Name: September 2016 - Vol. 52, No. 9

In the wake of the 2015 Court of Appeals opinion in In Re: Estate of Morris, the Tennessee legislature has stepped in and amended Tenn. Code Ann. §32-1-104 to lessen the formalities of Wills executed before July 1, 2016.

The Background

Despite that Tennessee courts will sustain a Will as legally executed if it can be done consistent with statutory requirements, it has been long held that the prescribed formalities for execution of an attested Will are mandatory and require strict compliance. In 2012, the Tennessee Supreme Court applied these principles in In re: Estate of Chastain to conclude that a decedent’s signature on a self-proving affidavit did not satisfy the statute requiring the testator’s signature on the Will. The court drew a distinction between the Last Will and Testament itself and the separate self-proving affidavit. Ultimately, the court’s opinion in Chastain turned on the fact that the decedent had not signed the actual Last Will and Testament.

The 2015 case of In Re: Estate of Morris held that a document signed by the decedent, but not the witnesses, failed to satisfy the statutory formalities for execution of a Will. In Morris, the Court of Appeals looked to the differences between the method of executing a Last Will and Testament contained in Tenn. Code Ann. §32-1-104 and the right, without obligation, to include a self-proving affidavit under Tenn. Code Ann. §32-2-110. Relying in part on Chastain and standing on the legal distinction between a self-proving affidavit and a Will, the court concluded that the witnesses signed a self-proving affidavit, but not the Will itself.

Both Chastain and Morris turned on the difference between a Will and a self-proving affidavit. While these opinions may appear to be straightforward, they left many unanswered questions. For example, Tenn. Code Ann. §32-2-110 allows the use of a self-proving affidavit but also expressly provides that the affidavit “shall be written on the Will or, if that is impracticable, on some paper attached to the Will.” Given this authority, is a Will that includes a witness attestation clause compliant with Tenn. Code Ann. §32-1-104 properly executed if the attestation is “in the Will” even though it is notarized? Does the notary stamp alone make it a self-proving affidavit rather than a Will? Suggesting the precise content of the document is paramount, the Morris court reproduced the relevant portions of the Will in its opinion. The document in Morris did not appear to have page numbers, so would it matter if each page, including the “affidavit,” is numbered and signed by the testator as part of his/her Last Will and Testament? Suppose each page is noted as “page ___ of ___.” Would the result differ if a document construed as a separate “affidavit” like in Morris is styled “witness attestation and affidavit?” Such a distinction might have an impact because Tenn. Code Ann. §32-1-104, addressing the witness requirements to a Will, describes the witnesses as “attesting witnesses.” To be sure, the questions are many and easily fuel both uncertainty and litigation. In an effort to resolve some of these issues and perhaps rescue otherwise defective documents, the Tennessee legislature has now amended Tenn. Code Ann. §32-1-104.

The Amendment to Tenn. Code Ann. §32-1-104

On April 19, 2016, Gov. Bill Haslam signed House Bill 1472, which amends Tenn. Code Ann. §32-1-104. Tenn. Code Ann.  32-1-104, as now amended, provides that witness signatures affixed to an affidavit that meets the present legal requirements for an affidavit to prove a Will shall be considered signatures to the Will itself provided certain conditions are met. To comply, the Will must have been executed before July 1, 2016, and the affidavit must meet several requirements. First, the signatures must be made at the same time as the testator signs the Will and in accordance with existing witness obligations contained in the statute. Second, the affidavit must contain language evidencing that the testator either signified to the witnesses that the document was the testator’s Will and was signed in the presence of the witnesses; that the testator acknowledged his/her signature to the witnesses if it was already signed; or that the testator directed someone else to sign the document. The affidavit must also signify that the witnesses signed in the presence of each other and the testator. The new amendment creates a presumption that the witnesses and the testator signed at the same time if the affidavit was signed on the same day. However, the presumption can be rebutted by clear and convincing evidence.

If witness signatures on the affidavit are treated as signatures on the Will, the affidavit will not also serve as a self-proving affidavit. Therefore, the petitioner must present other evidence to the court in order to probate a Last Will and Testament where the witness signatures on the affidavit are being utilized as witness signatures on the Will. Appropriate evidence can include live witness testimony or subsequently obtained interrogatories or depositions to prove the Will.

While the amended statute may still create issues to be resolved by the courts, it goes a long way toward solving problems with existing Wills. The opinions in Morris and Chastain had the possible effect of setting aside Last Will and Testaments that clearly had testamentary intent and were actually executed in front of two witnesses. The new law should, at least in most instances, remedy that situation.

Even with the new law, practitioners cannot rest on the belief the amended statute resolves sloppy drafting. Since the amendment only applies to Wills executed before July 1, 2016, it does not create the prospective right to rely on a self-proving affidavit to create a validly executed Will. Rather, it appears that practitioners should continue to heed the warnings and distinctions in the relevant cases as new Wills are prepared and executed.


  1. See Leathers v. Binkley, 264 S.W.2d 561, 563 (Tenn. 1954); In Re: Estate of Chastain, 401 S.W.3d 612, 619 (Tenn. 2012); Fann v. Fann, 208 S.W.2d 542, 544 (Tenn. 1948); In re: Estate of Stringfield, 283 S.W.3d 832 (Tenn. Ct. App. 2008). 
  2. In Re: Estate of Chastain, 401 S.W.3d 612, 621 (Tenn. 2012) (where the court said the “Decedent’s signature on the wholly separate affidavit does not rectify his failure to sign the Will).  The Court in In re: Estate of Chastain was also careful to say the holding does not mean a testator must sign each page, or where on the Will the testator must sign.  Id.
  3. Id. at 619-621.
  4. In Re: Estate of Morris, 2015 WL 557970 at *4-5 (Tenn. Ct. App. 2015).
  5. Id. at *3.  T.C.A. §32-1-104 sets out the requirements for witness signatures.  See Tenn. Code Ann. §32-1-104.  Tenn. Code Ann.. §32-2-110 permits the use of affidavits to prove the Will.  See Tenn. Code Ann. §32-2-110.
  6. Id. at *3-5.
  7. Tenn. Code Ann. §32-2-110.
  8. In re: Estate of Morris, 2015 WL 55790 at *1-2.
  9. In many instances, the testator will sign every page of the Last Will and Testament and, often, below a statement that says “This is page __ of my Last Will and Testament.”  Such a statement certainly creates the appearance the testator intended the entire document as his/her Will – including the “affidavit.”  Thus, if the affidavit included the necessary language for an attestation clause and is signed by two witnesses, the technical distinctions between the affidavit and Will become very blurred.
  10. See Tenn. Code Ann. §32-1-104(1)(D).
  11. See HB 1472 (signed by Governor Haslam on April 19, 2016 and assigned Pub. Chp. No. 843) amending Tenn. Code Ann. § 32-1-104.
  12. Id.
  13. Id.
  14. Id.
  15. Id.
  16. Id.
  17. Id.
  18. Id.
  19. See Tenn. Code Ann. §32-2-104.  To probate an uncontested Will it shall be proved by at least one of the witnesses, if living.  Tenn. Code Ann. §32-2-104(a).  If the Will is contested, then it is to be proved by all witnesses.  Id.  The witnesses can be presented live or by interrogatory or deposition.  Id. at (b).
  20. Given the uncertainties of whether a Will met the formalities after Chastain and Morris, older Wills could create fertile ground for new litigations.  The new statutory amendment should avert possible litigations.  See Eddy R. Smith, Strictly Speaking When is a Will Not a Will?, Tenn. B.J., August, 2015 (providing a good discussion of problems after In Re: Estate of Morris and methods for proper execution).

Josh McCreary JOSH A. MCCREARY is a member of Cope, Hudson, Reed & McCreary PLLC, a general practice firm in Murfreesboro. He has extensive experience representing businesses, individuals, and governmental entities in a wide variety of complex and general legal matters, including land use, business and civil litigation, healthcare, estate planning and probate matters. He received his law degree magna cum laude from the University of Tennessee in 1998 where he also served on the Tennessee Law Review.