February 24, 2014
Authored by: Luke Lantta
Originally posted on bryancavefiduciarylitigation.com
When it comes to will execution, sometimes the belt and suspenders approach may be well advised. But, other times, less is more. Like, perhaps, when it comes to the number of witnesses. When state law requires that you only need a set number of witnesses to a will, the Court of Appeals of Tennessee’s opinion in the will contest case of Estate of Woolverton shows us the potential problems that may arise when you bring in extra, unnecessary witnesses.
In Tennessee, the execution of a will requires only two witnesses. Three witnesses, however, signed the will of Dennis R. Woolverton. At a hearing on the will contest, only two of the three witnesses and a notary public testified about the signatures on the purported will. The trial court held that the document was the decedent’s validly executed will and admitted it to probate.
The appellate court, however, found that the will proponent was required to satisfy the statutory requirement of proof from all living witnesses, if to be found. Because the third witness to the will did not appear or testify, the trial court was required to make findings of fact and conclusions of law regarding the availability of the third witness, which it failed to do. Thus, while Tennessee may require only two witnesses, if you have more than two witness the will, you will need their testimony or demonstrate that they cannot be found.