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In re Estate of Chastain - 401 S.W.3d 612 (Tenn. 2012)

Rule:

Tenn. Code Ann. § 32-1-104 gives a testator some latitude in the manner of signing an attested will. The testator may either sign the will in the presence of the attesting witnesses, or acknowledge a signature already made in the presence of attesting witnesses, or direct someone else to sign the will in the presence of the testator and of the attesting witnesses. § 32-1-104(1)(A)-(D). But § 32-1-104 demands that the testator's signature be placed on the will by one of these means. The testator's signature is essential to the creation of a will. There can be no valid attestation or subscription unless it be a fact that the testator has actually signed his name, or caused it to be signed, before the witnesses subscribed their names. There is no will to witness until it has been signed by the testator.

Facts:

Decedent, Thomas Grady Chastain, failed to sign the will but signed the separate affidavit of attesting witnesses. Appellees, Chastain's grandchildren, argued that his signature on the affidavit did not satisfy Tenn. Code Ann. § 32-1-104(1) (2007), requiring the testator's signature on a will. The trial court agreed, but the intermediate appellate court did not. It held that Chastain's signature on the affidavit satisfied § 32-1-104 because he intended his signature on the affidavit to be his signature on the will. The grandchildren sought further appellate review.

Issue:

Was decedent Chastain's signature on the affidavit sufficient to satisfy the statutory mandate that the testator's signature be on the will?

Answer:

No

Conclusion:

The Supreme Court of Tennessee held that Chastain's signature on the affidavit did not cure his failure to comply strictly with the statutory formalities for executing an attested will. Even assuming that when Decedent signed the affidavit he intended to sign the will, a court had no authority to dispense with the statutory mandate that the testator's signature be on the will, and Chastain's signature on the affidavit was not sufficient to satisfy this requirement.

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