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According to the Tennessee Court of Appeals, even if the
Deceased does not sign
following the usual incantation at the end of a Will ("IN
WITNESS WHEREOF, I declare this to be my Last Will and Testament
..."); or
at the bottom of the last numbered page of the Will; or
above the signatures of the attesting witnesses at the bottom
of that page; or
anywhere else on the document purporting to be the
Will,
the Will is still validly executed if the Deceased does sign the
accompanying TCA § 32-2-110 witness affidavit. In re
Estate of Thomas Grady Chastain, No. E2011-01442-COA-R9, filed
December 28, 2011.
As the Opinion by Judge Susano points out, the recitations in
the Affidavit executed by the Decedent and the witnesses purported
to establish all the statutory formalities imposed by TCA §
32-1-104, reciting that the decedent had signed and declared to the
witnesses that the document to which the affidavit was attached was
his last will and testament, and that that the witnesses had signed
in the presence of the testator and in each other's presence.
Thus, the Opinion appears to stand for the proposition that it
really doesn't matter where the Will is signed, and also for
the proposition that a signature on a separate page, or even a
separate document, may be sufficient, if the formalities of TCA
§ 32-2-110 are otherwise observed.
Apparently, once the Court of Appeals was satisfied that the
Decedent had intended to execute the Will, it felt constrained to
"protect the right of testamentary disposition of
property." Doubtless this was a just decision, given the
formalities which were observed, even if those were not precisely
the formalities prescribed by statute. After all, while the Court
cites the Affidavit as establishing observance of the necessary
formalities, that same Affidavit contained a demonstrably false
recitation,
that the testator willingly and voluntarily declared, signed and
executed the will in the presence of the witnesses...
That is exactly what the testator did not do. Another court
might well have reached a different result, on the grounds that the
Affidavit was not trustworthy.
The only obvious lesson to be learned is that the formalities
prescribed by TCA § 32-2-110 for non-holographic wills should
be scrupulously and methodically followed. Lest we forget: The
testator and at least two witnesses must sign the will in this
fashion: the testator must signify to the witnesses that the
instrument is his or her will, and then, in all of the
witnesses' presence, either (a) sign the will;
(b) acknowledge his or her signature already made on the will; or
(c) direct a third person to sign, who must do so in the
testator's (and all the witnesses' presence). Then, the
attesting witnesses must sign (a) in the presence of the testator
and (b) in the presence of each other. An Affidavit pursuant to TCA
§ 32-2-110, such as the one signed by the Decedent in
Chastain, is not even necessary; but it does make it possible to
probate the will without the witnesses having to attend the
hearing
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