A Last Will and Testament is a legal document that directs how your property will be distributed when you pass away. This document has been used throughout human history and its existence in America today goes back to the English common law.
Unlike other documents, such as a contract, bill of sale, or lease, a Last Will and Testament is much more formal. There are certain execution requirements in order for it to be valid, and the person making it must also have the required legal capacity.
Let’s discuss at what goes into making a Last Will and Testament.
Testamentary Capacity
In order to make a Last Will and Testament, the person making the document (the Testator) must have testamentary capacity. Tennessee law allows anyone over the age of 18 and of sound mind to make a Will.
Questions about capacity to make a Will are almost always about whether the Testator was of a sound mind at the time of signing the Will. The Tennessee courts have held that the Testator’s mind, at the time the Will is executed, must be sufficiently sound that he or she knows the document is a Will and the consequences of executing it.
Capacity to make a Last Will and Testament is measured at the time of its execution. Therefore, if a person loses capacity after making a Will, it is still valid. Even if a person has a dementia diagnosis, he or she may still be able to execute a Will if done during a lucid period.
A Last Will and Testament Should Be in Writing
A Will generally must be in writing. In Tennessee, one may make an Oral (Nuncupative) Will in a very limited set of circumstances. And even if the oral Will is valid, it can only dispose of $1,000 worth of property, or $10,000 for active-duty military.
A handwritten will is also an option (though highly risky). This is known as a Holographic Will.
Witnesses are not necessary for a Holographic Will to be valid. But it must be entirely in the Testator’s handwriting and the Testator must sign it. The Testator’s signature must be proven by two witnesses to the court in order to have the Will admitted for probate.
While technically permissible, drafting a Holographic Will is hazardous because of the potential for mistakes and misplacement. Having an attorney help with drafting a Will provides legal protections and greater confidence that the Will was done right.
There is no length requirement for a Last Will and Testament. It can be as short as a one or two pages, or dozens of pages. What is more important than the length of your Will is ensuring that its terms accurately convey your wishes and that the provisions account for foreseeable situations. This can include death of an Executor or Beneficiary, or a disclaimer by a Beneficiary.
Witnesses to and Signatures on a Will
A Last Will and Testament has strict witnessing and signature requirements. While a contract merely needs proper signatures of the parties to be valid, a Will requires much more.
Wills (besides Oral and Holographic) must be signed by the Testator in the presence of two competent witnesses. The Testator must indicate to the witnesses that they are witnessing a Last Will and Testament.
The witnesses must actually see the Testator sign the document, or see someone else sign the Testator’s name at the Testator’s direction.
The signature requirement is strictly enforced in Tennessee. If a witness leaves and does not actually see the Testator sign his or her name, the Will could be invalid.
Witnesses must also be competent. Anyone who may be a witness generally can be a witness to a Last Will and Testament. It’s also highly advisable that the witnesses be disinterested. This means that the ones witnessing the Testator’s signature are not named in the Will as the Executor or as Beneficiaries.
To determine what constitutes being “in the Testator’s presence,” the Tennessee courts have stated that relatively short distances do not necessarily preclude valid execution. Nonetheless, it’s good practice to keep everyone within eyesight of each other, optimally at the same signing table until everything is complete.
Witness Affidavit
A Last Will and Testament often contains a self-proving affidavit after the Testator’s and witnesses’ signatures. The normal rule is that a Will requires at least one of the witnesses to swear under oath to the probate court that they actually witnessed the Testator sign the Will.
Alternatively, the witnesses may sign an affidavit at the time of execution. This avoids the need for the witnesses to testify in court. A Notary Public takes the affidavit. The drafting attorney or another law firm staff member will often serve in this role.
The affidavit must state the facts required to prove the Will’s validity in court. It can be attached to the Will or written into the Will itself. But the affidavit is nonetheless a separate component of the Will. This means witnesses technically have to sign twice. Once attesting to fact that they witnessed the Will’s execution, and a second time under oath before the Notary Public.
When the Testator Dies
After a person dies, that’s when the Will takes effect. But the Will itself doesn’t have legal authority until the courts give the Executor authority through Letters Testamentary.
This means there has to be a petition filed in the probate court where the Testator lived. So if the person lived in Murfreesboro, then the petition to probate the Will is filed with the Rutherford County Probate Court.
After reviewing the petition and all other necessary documents (including the Will itself), the probate judge signs an order appointing the Executor named in the Will. The clerk of the court then issues Letters Testamentary. The Executor then must gather estate assets, handle creditor claims, and then distribute the Estate as directed in the Will.
While the Will directs the distribution and handles certain administrative matters (like bond, inventory, and accounting), it’s Letters Testamentary that gives the Executor the necessary authority to carry out what’s in the Will.
Who Needs a Last Will and Testament?
It is advisable that everyone over the age of 18 have at least a basic Will in place. In the early stages of life, the Will is likely a very simple document. But having it in place provides clarity about what your wishes are instead of allowing the government’s wishes dictate what happens.
Keep in mind, though, that certain types of property may pass by other means regardless of what your Will says. This includes life insurance, retirement accounts, and jointly-owned property. It’s important that your estate plan is comprehensive and that all pieces work together.
To discuss setting up your Last Will and Testament, along with all other necessary estate planning documents, reach out to Connell Law, PLLC to request a consultation.
