In Re ESTATE OF Thomas Grady CHASTAIN

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 5, 2012 Session

IN RE: ESTATE OF THOMAS GRADY CHASTAIN

Appeal by Permission from the Court of Appeals, Eastern Section
Chancery Court for Polk County
No. P-933 Jerri S. Bryant, Chancellor

No. E2011-01442-SC-R11-CV - Filed November 16, 2012

The issue in this appeal is whether the statutory requirements for execution of an attested will
prescribed by Tennessee Code Annotated section 32-1-104(1) (2007) were satisfied when
the decedent failed to sign the two-page will but signed a one-page affidavit of attesting
witnesses. We conclude that the decedent’s signature on the separate affidavit of attesting
witnesses does not satisfy the statute requiring the testator’s signature on the will.
Accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the trial
court that the will was not properly executed is reinstated.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Judgment of the Trial Court Reinstated

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
and J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Ginger Wilson Buchanan, Cleveland, Tennessee, for the appellant, June Chastain Patterson.

George McCoin, Cleveland, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the
appellees, Trent Chastain and Adrian Chastain.

OPINION

Factual and Procedural History

Thomas Grady Chastain (“Decedent”) died on November 6, 2009. On April 30, 2010,
Decedent’s daughter, June Chastain Patterson, filed a petition for the administration of his
estate. Ms. Patterson alleged that Decedent died intestate and that she was Decedent’s “sole
surviving heir.” Ms. Patterson sought appointment as administrator of Decedent’s estate as
well as a waiver of bond and inventory. Ms. Patterson’s requests were granted the day she
filed the petition, and letters of administration issued.

On July 7, 2010, Trent and Adrian Chastain (“Chastains”1 ), two of Decedent’s
grandchildren, filed a motion for bond, inventory, and an accounting of Decedent’s estate.
The Chastains alleged that Ms. Patterson had falsely sworn to being Decedent’s sole heir,
that Decedent had two predeceased sons, and that the six surviving issue of Decedent’s
predeceased sons are also his heirs and entitled to a share of his estate under the laws of
intestacy.

Notwithstanding her prior petition alleging that Decedent died intestate, on August 24,
2010, the date of the hearing on the Chastains’ motion, Ms. Patterson “deposited” with the
trial court a consecutively numbered, two-page document dated September 4, 2004, and titled
“Last Will and Testament” (“Will”). The first paragraph of the Will is reproduced below.

The Will named Decedent’s grandchildren and great-grandchildren and bequeathed
to them his knife collection and any insurance monies remaining after Decedent’s bills had
been paid. The Will bequeathed the remainder of Decedent’s estate to Ms. Patterson and
named her as executrix. Decedent’s initials, the initials of three witnesses, and the date
appear at the bottom of the first page of the Will as follows:

1
The trial court’s order granting Ms. Patterson’s application for interlocutory appeal and the Court
of Appeals’ opinion listed Trent Chastain, Adrian Chastain Mann, Dana Chastain, Phillip Chastain, Amanda
Chastain, Grady Patterson, Kari Patterson, Carter Mann, and Shaylee Mann as defendants/appellees.
However, Mr. George McCoin filed the application for permission to appeal and the supplemental brief in
this Court, and documents filed in the trial court and in this Court establish that Mr. McCoin represents only
Trent and Adrian Chastain, who, along with Ms. Patterson, are the only parties to this appeal.

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Although the second page of the Will, reproduced below, includes the signatures of three
witnesses and a blank line on which Decedent’s name apparently should have been printed,
the Will included no blank line for Decedent’s signature, and Decedent’s signature is not on
this page of the Will.2

However, Decedent and the attesting witnesses signed a separate one-page document
titled “Self-Proved Will Affidavit” (“Affidavit”) that Ms. Patterson submitted along with the
Will. The Affidavit is reproduced in its entirety below.

2
At a hearing in the trial court, Ms. Patterson’s attorney stated that the Will was prepared from a
form without the assistance of counsel. This case illustrates the problems that may arise when lay persons,
unversed in the statutory requirements for executing a will, use generic forms.

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 On September 7, 2010, the Chastains filed a motion for declaratory judgment seeking
a determination of the validity of the Will. The Chastains argued that Decedent had not
signed the Will and that his signature on the Affidavit did not satisfy the statute requiring the
testator’s signature on a will.3 See Tenn. Code Ann. § 32-1-104 (2007) (prescribing the
manner in which a will, other than a holographic or noncupative will, must be executed). On
October 15, 2010, before the trial court ruled on the Chastains’ declaratory judgment motion,
Ms. Patterson filed a petition to probate the Will. On November 17, 2010, the Chastains filed
a notice of contest, again challenging the Will’s validity based on Decedent’s failure to sign
it as required by statute.

On January 24, 2011, the trial court entered an agreed order that scheduled a hearing
for February 9, 2011, to decide only the question of whether Decedent executed the Will as
required by statute. The parties presented no proof at the February 9, 2011 hearing and asked
the trial court to decide the issue based on the Will and the Affidavit alone.

The Chastains argued that Decedent failed to sign the two-page Will as required by
Tennessee Code Annotated section 32-1-104, that the separate Affidavit is not part of the
Will, and that Decedent’s signature on the Affidavit is not sufficient because Tennessee law
does not recognize the doctrine of integration. In response, Ms. Patterson argued that the
Will includes the Affidavit and that Decedent’s signature on the Affidavit satisfies Tennessee
Code Annotated section 32-1-104.

On March 14, 2011, the trial court ruled in favor of the Chastains, concluding “that
the four corners of these documents do not make a will.” The trial court also concluded that
Decedent’s initials on the first page of the Will are not a signature, that Decedent failed to
sign the second page of the Will, and that Decedent’s signature on the Affidavit is not
sufficient because Tennessee law requires “strict compliance in the execution of wills.”

The trial court granted Ms. Patterson permission to seek a Tennessee Rule of
Appellate Procedure 9 interlocutory appeal, and the Court of Appeals granted Ms. Patterson’s
Rule 9 application. A divided panel of the Court of Appeals reversed the trial court’s
judgment. In re Estate of Chastain, No. E2011-01442-COA-R9-CV, 2011 WL 6916459, at
*1 (Tenn. Ct. App. Dec. 28, 2011). The majority held that Decedent’s signature on the
Affidavit satisfied Tennessee Code Annotated section 32-1-104 because Decedent “intended

3
For purposes of their declaratory judgment motion, the Chastains assumed the authenticity of
Decedent’s signature on the Affidavit, but they reserved “their issues as to witnessing, authenticity of
signature, proper and valid execution, undue influence, dominance and control, the relation of the witnesses
to the parties, competency of the testator, and all other reasons.” They also argued that the Will, “even if
signed and even if signed by [Decedent], is not . . . valid for probate and even [if] valid, that [Ms. Patterson]
is estopped to offer it for probate due to her previous sworn pleading that there is no will.”

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his signature on the [A]ffidavit to be his signature on the Will.” Id. at *3. The majority thus
found it unnecessary to decide whether the integration doctrine, which “treats an affidavit as
integrated into the will in order to sustain its validity,” should be adopted in Tennessee. Id.
at *5.

In his dissenting opinion, Judge D. Michael Swiney opined that Decedent failed to
sign the Will as required by Tennessee Code Annotated section 32-1-104. Id. (Swiney, J.,
dissenting). Judge Swiney viewed the Affidavit as a separate document from the Will,
pointing to language in the Affidavit instructing that it be attached to the Will and referring
to the Will as a separate document. Id. at *6. Judge Swiney concluded that a testator’s
failure to sign a will is not cured by a testator’s signature on a separate document. Id. Judge
Swiney also explained that courts are not at liberty to dispense with statutory mandates
concerning the execution of a will. Id. at *7.

We granted the Chastains permission to appeal.

Standard of Review

The issue in this appeal is whether Decedent satisfied the statutory requirements for
execution of an attested will.4 The facts relevant to this issue are undisputed, and we review
this question of law de novo, according no presumption of correctness to the conclusions of
the courts below. In re Estate of McFarland, 167 S.W.3d 299, 302 (Tenn. 2005); In re Estate
of Stringfield, 283 S.W.3d 832, 834 (Tenn. Ct. App. 2008).

Analysis

The Legislature has the authority to prescribe the conditions by which property may
be transferred by will in this State. Epperson v. White, 299 S.W. 812, 815 (Tenn. 1927);
Eslick v. Wodicka, 215 S.W.2d 12, 15 (Tenn. Ct. App. 1948). The General Assembly
exercised this power in 1941 by enacting the Execution of Wills Act.5 See Act of Feb. 14,

4
Tennessee recognizes three types of wills: (1) attested wills; (2) holographic wills; and (3)
noncupative wills. See Tenn. Code Ann. §§ 32-1-104 to -106. The requirements for executing a will of each
type are specified by statute. Id. This appeal involves the requirements for executing an attested will.
5
The 1941 Execution of Wills Act was “a verbatim enactment of the Model Execution of Wills Act
approved in 1940 by the National Conference on Uniform State Laws.” 1 Jack W. Robinson, Sr., et al.,
Pritchard on the Law of Wills and Administration of Estates § 4, at 10 (6th ed. 2007) [hereinafter Pritchard]
(citing Model Execution of Wills Act, 9A U.L.A. 659 (1965)); see also In re Holliday’s Estate, 177 S.W.2d
826, 826 (Tenn. 1944) (“The statute [Chapter 125 of the Public Acts of 1941] is one of the series of Uniform
Acts compiled by the National Uniform Laws Commission as a model to be adopted in all the States.”).
(continued...)

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1941, ch. 125, 1941 Tenn. Pub. Acts 449. This legislation prescribed uniform standards for
the execution of attested wills.6 These statutory requirements have remained virtually
unchanged in the ensuing seventy-one years7 and are currently codified in Tennessee Code
Annotated section 32-1-104, which provides:

The execution of a will, other than a holographic or nuncupative
will, must be by the signature8 of the testator and of at least two
(2) witnesses as follows:
(1) The testator shall signify to the attesting witnesses that the
instrument is the testator’s will and either:
(A) The testator sign;
(B) Acknowledge the testator’s signature already
made; or

5
(...continued)
Tennessee is the only state that enacted this model law. Pritchard § 4, at 10.
6
Prior to 1941, the requirements for executing wills differed depending on whether the will
transferred realty or personalty. See Fransioli v. Podesta, 113 S.W.2d 769, 772 (Tenn. Ct. App. 1937) (“The
requirements of the law with reference to the execution of wills devising real estate are much more strict than
are the requirements with reference to the execution of wills of personalty.”).
7
Section 4 of the 1941 Execution of Wills Act provided:

Execution. The execution of a will, other than a holographic or
noncupative will, must be by the signature of the testator and of at least two
witnesses as follows:
(1) Testator. The testator shall signify to the attesting witnesses that the
instrument is his will and either
(a) Himself sign,
(b) Acknowledge his signature already made, or
(c) At his direction and in his presence have someone else
sign his name for him, and
(d) In any of the above cases the act must be done in the
presence of two or more attesting witnesses.
(2) Witnesses. The attesting witnesses must sign
(a) In the presence of the testator, and
(b) In the presence of each other.

Act of Feb. 14, 1941, ch. 125, sec. 4, 1941 Tenn. Pub. Acts 449, 450.
8
“‘Signature’ or ‘signed’ includes a mark, the name being written near the mark and witnessed, or
any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or
record, regardless of being witnessed.” Tenn. Code Ann. § 1-3-105(31) (Supp. 2012).

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 (C) At the testator’s direction and in the testator’s
presence have someone else sign the testator’s
name; and
(D) In any of the above cases the act must be
done in the presence of two (2) or more attesting
witnesses.
(2) The attesting witnesses must sign:
(A) In the presence of the testator; and
(B) In the presence of each other.

(footnote added). This statute gives a testator some latitude in the manner of signing an
attested will.9 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.
Tenn. Code Ann. § 32-1-104(1)(A)-(D). But the statute demands that the testator’s signature
be placed on the will by one of these means. Id. The testator’s signature is essential to the
creation of a will. See Simmons v. Leonard, 18 S.W. 280, 282 (Tenn. 1892) (“[T]here 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.”).

Tennessee courts have consistently interpreted statutes prescribing the formalities for
execution of an attested will as mandatory and have required strict compliance with these
statutory mandates. See, e.g., Fann v. Fann, 208 S.W.2d 542, 544 (Tenn. 1948) (holding that
the will had not been properly executed where the attesting witnesses failed to sign it in each
other’s presence); In re Estate of Stringfield, 283 S.W.3d at 832 (holding that the will was
not properly executed where the attesting witnesses failed to sign the will but initialed the
first two pages of the will and submitted an affidavit of attesting witnesses); In re Estate of
Wait, 306 S.W.2d 345, 349 (Tenn. Ct. App. 1957) (holding that the will had not been
properly executed where the testatrix failed to sign it at the same time and in the presence of
the attesting witnesses); Ball v. Miller, 214 S.W.2d 446, 450 (Tenn. Ct. App. 1948) (“Certain
acts required in the execution of wills we view as mandatory[,] and an instrument does not
attain the character admissible to probate unless and until they are performed.”); Eslick, 215
S.W.2d at 15 (holding that the will had not been properly executed where the attesting
witnesses signed it separately and later acknowledged their signatures in the presence of the
testator and each other); see also Pritchard § 4, at 10 (“[I]t is indispensable that every

9
In contrast, attesting witnesses have no latitude as to the manner of signing a will, see In re Estate
of Stringfield, 283 S.W.3d at 837, but are required to sign “[i]n the presence of the testator” and “[i]n the
presence of each other.” Tenn. Code Ann. § 32-1-104(2).

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requirement of the Tennessee Execution of Wills Act be complied with in the execution of
a will.”). Statutes requiring the observance of formalities in the execution of wills are
designed to prevent fraud, mistakes, and uncertainty in the testamentary dispositions of
property. Ball, 214 S.W.2d at 449-50. Enforcing strict compliance with such statutory
formalities is intended to preserve “the inviolability” and “sanctity” of a testator’s right to
dispose of property by will. Id. at 449. “While in some cases a relaxation in the enforcement
of these statutory provisions, or a liberal construction thereof, might appear to be justified,
in many instances such a practice would serve only to thwart the testator’s purposes.” Id. at
449-50. Accordingly, Tennessee courts will sustain a will as legally executed only if it is
possible to do so consistently with statutory requirements. Leathers v. Binkley, 264 S.W.2d
561, 563 (Tenn. 1954).

With these principles in mind, we turn to the undisputed facts of this case. The parties
agree that Decedent failed to sign the Will.10 The dispute focuses on the legal effect, if any,
of Decedent’s signature on the Affidavit. The Chastains argue that Decedent’s signature on
the Affidavit does not cure his failure to comply strictly with the statutory formalities for
executing an attested will. The Chastains maintain that the Affidavit is a separate document
from the Will and intended for use in a probate court only if a will is uncontested.

On the other hand, Ms. Patterson argues that Decedent’s signature on the Affidavit
satisfies the statutory formalities because: 1) Decedent and the attesting witnesses signed the
Affidavit on the same day the witnesses signed the Will; 2) Tennessee law recognizes that
a will may consist of multiple documents and the Affidavit was found with the Will; 3) the
statute does not require a testator to sign a will in a particular location; and 4) Decedent
intended to sign the Will when he signed the Affidavit.

We hold that Decedent’s signature on the Affidavit does not cure his failure to comply
strictly with the statutory formalities for executing an attested will. Despite Ms. Patterson’s
assertion to the contrary, the Affidavit is not part of the Will. The Affidavit was prepared
pursuant to Tennessee Code Annotated section 32-2-110, which states:

Any or all of the attesting witnesses to any will may, at the
request of the testator or, after the testator’s death, at the request
of the executor or any person interested under the will, make and
sign an affidavit before any officer authorized to administer
oaths in or out of this state, stating the facts to which they would
be required to testify in court to prove the will, which affidavit

10
Ms. Patterson has not challenged the Court of Appeals’ holding that Decedent’s initials on the
bottom of the first page of the Will failed to satisfy the statutory signature requirement.

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 shall be written on the will or, if that is impracticable, on some
paper attached to the will, and the sworn statement of any such
witness so taken shall be accepted by the court of probate when
the will is not contested as if it had been taken before the court.

Tenn. Code Ann. § 32-2-110 (2007). This statute authorizes use of an affidavit of attesting
witnesses in lieu of live testimony only if a will is uncontested. See Pritchard § 210, at 328
(“[A]n affidavit of an attesting witness, instead of resorting to testimony of the witness in
open court, may be used to prove a will unless the will is contested. . . . The customary
practice is for attesting witnesses to also sign affidavits at the time the will is executed, so
that later probate of the will will be facilitated.”). By requiring the affidavit to “be written
on the will or, if that is impracticable, on some paper attached to the will,” Tenn. Code Ann.
§ 32-2-110, a clear distinction is drawn between an affidavit of attesting witnesses and a will.

This distinction is also apparent from the language of the Affidavit at issue in this
appeal. The instructions—“(attach to Will)”—are printed on the Affidavit immediately
below the title “Self-Proved Will Affidavit.” The first paragraph of the Affidavit refers to
the Will as “the attached or foregoing instrument.” Simply put, both the statute and the
Affidavit establish that the Affidavit is not a continuation of the Will. Accordingly,
Decedent’s signature on the Affidavit is not sufficient to satisfy the statutory requirement that
he sign the Will by one of the means provided by statute.

Our holding should not be interpreted as requiring a testator to sign each page of a will
that is written on several detached sheets of paper. See Gass’ Heirs v. Gass’ Ex’rs, 22 Tenn.
(3 Hum.) 278, 284-85 (Tenn. 1842). Nor does our holding require a testator to sign in a
particular location on the will because Tennessee Code Annotated section 32-1-104 is silent
on this issue. See Pritchard § 205, at 322 (“Neither . . . former T.C.A. § 32-109 nor the
Tennessee Execution of Wills Act of 1941 contains any provision as to the part of the will
at which [the testator’s] signature must appear.” (footnote omitted)). We hold only that a
testator must sign the will, not a wholly separate document. Here, Decedent failed to sign
either of the two consecutively numbered pages that constituted the Will. Decedent’s
signature on the wholly separate Affidavit does not rectify his failure to sign the Will.

Ms. Patterson asserts that Decedent signed the Affidavit intending to sign the Will and
believing he was signing the Will, so his signature on the Affidavit should be deemed
sufficient.11 Decedent’s signature on the separate Affidavit provides little, if any, insight

11
Ms. Patterson points to section 2-503 of the Uniform Probate Code, which provides:

Harmless Error. Although a document or writing added upon a document
(continued...)

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about Decedent’s beliefs and intentions concerning the unsigned two-page Will. Even
assuming Ms. Patterson’s assertion is correct, however, our conclusion remains the same.
Courts endeavor to effectuate a testator’s intent “unless prohibited by a rule of law or public
policy,” In re Estate of McFarland, 167 S.W.3d at 302, and courts will sustain a will as
legally executed if it can be done consistently with statutory requirements, Leathers, 264
S.W.2d at 563. However, courts may not ignore statutory mandates in deference to a
testator’s intent. Ball, 214 S.W.2d at 449-50. Irrespective of Decedent’s intent, we have no
authority to dispense with the statute mandating Decedent’s signature on the Will, and
Decedent’s signature on the Affidavit simply is not sufficient to satisfy this requirement.

Ms. Patterson also asks us to adopt the doctrine of integration by which “a separate
writing may be deemed an actual part of the testator’s will, thereby merging the two
documents into a single instrument.” In re Will of Carter, 565 A.2d 933, 936 (Del. 1989).
As Ms. Patterson recognizes, this doctrine has not been judicially adopted in Tennessee, and
the General Assembly has not enacted Section 2-504(c) of the Uniform Probate Code, which
provides that “[a] signature affixed to a self-proving affidavit attached to a will is considered
a signature affixed to the will, if necessary to prove the will’s due execution.” Unif. Probate
Code § 2-504(c) (2008). Rather, Tennessee Code Annotated section 32-1-104 plainly and
unambiguously requires a testator’s signature to appear on the will. This statutory
requirement has been in place and strictly enforced for seventy-one years. The Legislature
has neither relaxed this requirement nor provided that it may be satisfied by the testator’s
signature on a document separate from the will. “[T]he [L]egislature’s failure to ‘express
disapproval of a judicial construction of a statute is persuasive evidence of legislative
adoption of the judicial construction.’” Freeman Indus. v. Eastman Chem. Co., 172 S.W.3d
512, 519 (Tenn. 2005) (quoting Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn. 1977)).
As already noted, the Legislature is the entity authorized to prescribe the conditions by which
property may be transferred by will in this State, Epperson, 299 S.W. at 815, and courts have
no authority to modify those conditions. Ball, 214 S.W.2d at 450. Given the Legislature’s
adoption of statutes prescribing the manner of executing an attested will and its tacit approval

11
(...continued)
was not executed in compliance with Section 2-502, the document or
writing is treated as if it had been executed in compliance with that section
if the proponent of the document or writing establishes by clear and
convincing evidence that the decedent intended the document or writing to
constitute (i) the decedent’s will, (ii) a partial or complete revocation of the
will, (iii) an addition to or an alteration of the will, or (iv) a partial or
complete revival of his [or her] formerly revoked will or of a formerly
revoked portion of the will.

Unif. Probate Code § 2-503 (2008). As Ms. Patterson recognizes, however, this provision has not been
enacted in Tennessee.

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of court decisions strictly enforcing those statutory mandates, we decline to adopt the
doctrine of integration because doing so would amount to a relaxation of statutory
requirements. Whether the doctrine of integration should be adopted is a matter for the
Legislature. See In re Estate of McFarland, 167 S.W.3d at 305-06 (declining to overrule a
longstanding judicial decision regarding the appropriate manner of distributing lapsed
residuary gifts in a will but recognizing the General Assembly’s prerogative to adopt another
“‘modern’ rule.”).

Conclusion

We conclude that Decedent’s signature on the Affidavit does not satisfy the statute
requiring the testator’s signature on a will. Accordingly, the judgment of the Court of
Appeals is reversed, and the judgment of the trial court finding that the Will had not been
properly executed is reinstated. This matter is remanded to the trial court for any further
necessary proceedings consistent with this opinion. Costs of this appeal are taxed to Ms.
Patterson and her surety, for which execution may issue if necessary.

_________________________________
CORNELIA A. CLARK, JUSTICE

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