How Do You Make a Valid Will In Tennessee?

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To make a valid will under Tennessee law, the will must be:

  1. In writing
  2. Signed by the testator
  3. Signed by at least two witnesses

 

The requirements to make a valid will in Tennessee can be found at TN Code § 32-1-104.

Who Can Make a Valid Will In Tennessee?

“Any person of sound mind eighteen (18) years of age or older may make a will.”  TN Code § 32-1-102.

To be considered of sound mind and have testamentary capacity to make a valid will in Tennessee, a testator must, at the time the will is executed, be able to know and understand the force and consequence of the act of making the will and must have an intelligent consciousness of:

  1. The nature and effect of making the will;
  2. A knowledge of the property possessed; and,
  3. An understanding of the disposition to be made.

 

See In re Estate of Elam, 738 S.W.2d 169 (Tenn. 1987).

Signature Requirements For a Tennessee Will

When executing a Tennessee will, 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

(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.

Therefore, a will can be valid under Tennessee law if the testator’s name is signed by another person at the testator’s direction and in the testator’s presence.

However, if at all possible, the testator should sign their own name to the will.  If another person signs, even if the reason has nothing to do with the testator’s mental capacity, a will challenger will likely use the fact that the testator did not sign the will himself to argue that the testator was unable, by reason of lack of testamentary capacity, to sign the will.  Of course, the challenger would have to prove that the testator lacked the mental capacity to sign the will in order to successfully invalidate the will.

Witness Requirements To Make a Valid Tennessee Will

Any person competent to be a witness generally in Tennessee may act as an attesting witness to a will.  See TN Code § 32-1-103.

The attesting witnesses must sign:

(A) In the presence of the testator; and

(B) In the presence of each other.

See TN Code § 32-1-104.  Therefore, Tennessee has a “presence” requirement to make a valid will.  Everyone (the testator and the witnesses) must be in the same room at the same time and witness everyone else sign the will.

Does a Tennessee Will Have To Be Notarized To Be Valid?

No, there is no requirement under Tennessee law that a will must be notarized in order to be valid.

Tennessee law provides that a will can be made self-proving by executing an affidavit before any officer authorized to administer oaths, stating the facts to which they would be required to testify in court to prove the will, which affidavit shall be written on the will or, if that is impracticable, on some paper attached to the will.  These sworn statements can be used in lieu of witness testimony as to the execution of the will.  See TN Code § 32-2-110.

In order to make sure that you create a valid will under Tennessee law, consult with a Tennessee probate lawyer.