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Probate Of Wills In Common Form - Proof Of Facts 088 - Tennessee
| Probate Of Wills In Common Form - Proof Of Facts Form. This is a Tennessee form and can be used in Probate Chancery Court Hamilton Local County . |
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1 PROBATE OF WILLS IN COMMON FORM PROOF OF FACTS Will must be originalnot a copy. Make sure the affidavit of will witnesses is original and in proper form. Some attorneys may want to proceed and bring in the original later this morning. We nowt oillpen an estate to probate a will until we have the or inigin al hand. We will not attest to, or certify copies of, unprob wateillsd . In T.C.A. 32-2-108 Copies of wills as evidence, the wordssu ch wills refer to wills which have been proba ted. 2 ATTESTED WILL (Formal Will) 3 FACTS REQUIRED that Testator had testamentary intent assig nified (by actions or otherwis) e Testator tells witnesses the 4 instrument is his will that Testator signed, OR acknowledged his signature already made, OR at his discretion and in his presence 5 had another sign his name Testators signing was in presence of 2 or more witne sse Ts hat the witnesses signed in presence of 6 Testator and in presence of each oth er that Testator had testamentary capacity (sound mind + age 18 or over). 7 8PROOF OF FACTS Testimony of at least 1 subscribing witness, if livin g. Subscribing witnesses may appear by affidav it. The attesting affidavit must be writteonn the will or attached thereto The affidavit may be obtained by Testator, OR AFTER DEATH OF TESTATOR, the affidavit may be obtained by the executor or other interested pe rsoIfn th. ere is no affidavit and the subscribing witnesses cannot be found, the resorste icsond ary evidence sufficient to establish with reasonable certainty all the facts necessary for the execution of a valid will, usually, but not limitedte tosti, mony as to the signatures of al wl itnesseven if there 9 are more than twoand two witnesses to the signature of Testator. If there is no attesting clause, proof will also be required for the testamentary intent and the testamentary capacity. HOLOGRAPHIC WILL If will is holographic, without formal execution, twdiosinterested parties must appear to prove the handwriting. (This is in addition to otherwise proving the will to be in effec t, etc.) 10 FACTS REQUIRED that all materia prl ovisions are totally in the handwriting of Testato r. that Testator signed the will (generally that the will must show on its face somewhere the identity of TestatoWr.)hile there is no statutory requirement for the will to be dated, the presence or absence of a date may be probative evidence as to the documents validity or of Testators testamentary intent. 11 12 PROOF OF FACTS Testators handwriting: proven by the testimony of t wwo itnesses testamentary intent: proven by the 13 testimony of on oe r more witnesses. the document or the circumstances must clearly show Testator intends for the writing to be 14 his will Testamentary capacity (sound mind + age 18 or over): o orn emore witnesses. 15 NUNCUPATIVE WILL FACTS REQUIRED testator must be in imminent peril of deathte stator must possess testamentary capacity to make a will applies to personal property only cannot exceed $1,000 in value neither revokes nor changes an existing written will tw o disinterested witnesses must be reduced to writing by witness within 30 days of declaration 16 PROOF OF FACTS must not be probated within 14 days nor more than 6 months of de ateth stimony of facts required by the 17 two disinterested witnesses both disinterested witnesses must testify l ive 1 The elements of proof for Common Form Probate do not apply to proof of contillsest oed wr solemn form probat Te.here are many ways to prove the requirements of a will. The attesting witness affidavit is but o mneethod of proof. Also, the proponent of the will is forearmed with the presumption against intestacy. This analysis is not by any means a definitive statement on how to prove wills. Although rare now, note that for wills made before 15 Febr941, yuaoru my 1 ust see T.C.A. 32-1-108, 32-1-109, 32-1-110, and 32-1-111. 2 To attest is to bear witness to a fact.s ubsA cribing witnes iss one who merely attests the signature of a party to an instrument. Without an attesting clause, the witness is nothing morewithout further prootfhan a subscribing witnes,s as we do not know what facts are being attested beyond the partys signature. The attestation clause is where the witnesses certify the instrument has been executed before them, and has been done so in the manntoerry o rfe squtaitruement, i.e., as stated in FACTS REQUIRED. The presence of an attesting clause raises a presumption that the recitals therein were true. See, e.g., Nm eve.d Dhoayle, 39 Tenn. App. 597, 286 S.W.2d 601 (1955). Without the attesting clause, there is no such presumption. 3 Hale v. Bradley, 817 S.W.2d 320 (Tenn. Ct. App. 1991). 4 Otherwise known as publication. 5 T.C.A. 32-1-103. Witnesses Who may act. Any person competent to be witness generally, but must not receive a personenalef oicria bl interest (unless there are 2 other non-interested witnesses th ore interest is forfeited to the exten itt exceeds wha tht e witness would have taken intestate.) 6 T.C.A. 32-1-104. Will other than holographic or nuncupative. 7 T.C.A. 32-2-104. Proof of will generally. 8 T.C.A. 32-2-110. Affidavit of witnesses to prove will. 9 th Pritchard on Willsand A dministration of Estate, 5s ed. vol. 1, 347, pp 529 530, and cases cited therein. 10 T.C.A. 32-1-105. Holographic will. Because of this, the holographic will cannot normally incorporate by reference a do ncoutm ceontmplying with this requirement. But, if thats a problem, you may want to lookthe a dt octrine of facts of independent significa ancse discussed in In re Tipler, 10 S.W.3d 244 (Tenn. App. 1998). 11 The provision for at least 1 subscribing witness, if living, in T.C.A. 32-2-104, does not apply to holographic wi llws.i Ttnwesoses are required. 12 T.C.A. 32-1-105. Holographic will. There is no provision in the statutes for these handwriting witnesses to come before the court by affidavit as trh aetrtee isstin fog witnesses. As a foundation, handwriting witnesses must show the Court how they were knowledgeable of Testators handewarr itiinn gmi. Bnd that witnesses are required to be credible. On a continuum, witness credibility will range from one end of arms-length testimony to tinhete torestatelldy w itness at the other end. While there is no law prohibiting a person taking under a holographic will from testifying to the hand writing, the witnesslitsy mcready pibiresent a severe probative evidence problem. 13 Smith v Smith, 33 Tenn. App.
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