What is a will?
A will is a testamentary legal document that specifies how a person wants their property to be managed and distributed at their death. Tennessee currently recognizes three different types of wills: (1) attested wills; (2) holographic wills; and (3) nuncupative (oral) wills. Each of these categories have their own drafting and execution requirements that must be followed.
Attested wills are those documents that most of us are familiar with. They are usually typed, signed, witnessed, and notarized. In other words, they are the documents we imagine when we hear the words "last will and testament." Tenn. Code Ann. § 32-1-104 dictates how an attested will is properly executed:
It must be signed by the testator and two witnesses;
The testator must signify to the witnesses that it is his or her will;
The signature must be signed or acknowledged in front of the two witnesses;
The witnesses must sign in the presence of the testator; and
The witnesses must sign in the presence of each other.
These requirements are the bare minimum when a court determines whether a will is valid. You will notice that there is no mention of signatures being notarized, the witnesses being disinterested, or specific language requirements when making a bequest. None of these are strictly necessary, but all of them serve very important purposes that are commonly overlooked. It is important to consult with an attorney to assure that hardships are minimized for your heirs.
Handwritten wills are recognized in Tenn. Code Ann. § 32-1-105. Generally, the only formal requirements to establishing a valid holographic will are:
It must be signed by the testator;
All of the “material provisions” of the will must be in the handwriting of the testator; and
The testator’s signature must be proved by two witnesses.
Handwritten wills are not uncommon. However, they tend to be more open to will contests on the basis of undue influence, lack of capacity, fraud, or ambiguous language. This is usually caused because of a few factors.
Lack of Witnesses: Handwritten wills do not have the formal witness requirements at the time of signing. At first glance, the testator may feel as if they are getting away with the annoyance of organizing a formal will signing. That may be true. Unfortunately, they are also missing the primary importance of having witnesses: evidence that the testator is of sound mind and disposing memory, that they were not being coerced in signing their name to the document, and that no one was forging their signature. Lastly, proving the authenticity of a testator’s handwriting adds additional time and expense in the administration process.
Vague Language: Conveying property through a will is an artful process that has developed over hundreds of years; and handwritten wills are held to the same standard as professionally crafted ones. Estate planning attorneys understand the language the court wants to hear. Unfortunately, it is not the same language that most of us use every day.
If there is ambiguous language, the testator will not be around to clarify his or her wishes. This can lead to the named executor (if one is named) to have insufficient power to control distributions and streamline the probate process. It can also cause an intended beneficiary to miss out on an inheritance. Lastly, if the testator wrote someone out of an inheritance, vague language is a great tool for them to dispute that effect.
Lack of Planning: Most people who write their own will operate under some assumptions. Life is unpredictable, and those assumptions do not always hold true. For example, if you leave property to a specific person, what happens to that property when they die? What if a minor child becomes a beneficiary? What happens to that property if they subsequently get divorced? Does the beneficiary actually want the property? And can the executor sell the real property (hint: not necessarily)?
Oral wills are an oddity in Tennessee. They are limited in their power in nearly every regard. Tenn. Code Ann. § 32-1-106 defines the creation, execution, and validity of these wills:
They can only be made by a person in "imminent peril of death," and are only valid if the person died of that peril;
They must be declared before two disinterested witnesses;
They must be put into writing by one witness within 30 days;
Submitted for probate within six months;
Only dispose of less than $1,000.00 of personal property; and
They cannot revoke or change an existing will.
Although oral wills are rarely used in Tennessee in an official capacity, knowledge of their use are beneficial to many of our clients going through the probate process. For instance, children of recently deceased parents will often express that their parents told them that money should be used in a certain way or that a piece of jewelry should go to a particular person. A review of the formal requirements of an oral bequest can show that there very little that can be done to establish those wishes during court proceedings.
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