TIMOTHY PARKER et al.
JAMES MARK PARKER et al.
Session: January 17, 2017
from the Chancery Court for Bedford County No. 28633 J.B.
appeal arises from a will contest. The witnesses to the will
failed to sign the body of the will, but they signed the
self-proving affidavit in the presence of the testator. After
the will was admitted to probate in common form, the
contestants filed a complaint challenging the validity of the
will. The contestants later filed a motion for summary
judgment, arguing that the decedent did not comply with the
execution requirements of Tenn. Code Ann. § 32-1-104,
because the witnesses did not sign the body of the will. The
trial court granted the motion based on In re Estate of
Bill Morris, No. M2014-00874-COA-R3-CV, 2015 WL 557970
(Tenn. Ct. App. Feb. 9, 2015), holding that a will is not
validly executed if the witnesses sign only the self-proving
affidavit. The executor appealed. While this appeal was
pending, the General Assembly passed an amendment to Tenn.
Code Ann. § 32-1-104, which states that wills executed
prior to July 1, 2006, satisfy Tennessee's due execution
requirements if the witnesses to the will signed the
self-proving affidavit. In this appeal, both parties ask this
Court to determine whether the newly enacted amendment
applies and, if so, whether it comports with Tennessee's
constitutional prohibition against retrospective laws. But
for a few exceptions, we will not consider issues the parties
did not present to the trial court. Because the General
Assembly enacted this amendment while this appeal was
pending, the trial court has not had the opportunity to
consider these issues. In order to afford the trial court
that opportunity, we vacate the judgment declaring the will
invalid. Further, we remand to the trial court with
instructions to reinstate the petition to admit the will to
probate and to reinstate the amended complaint challenging
the will, which will give the parties the opportunity to
present these issues to the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Vacated and Remanded.
Murray Milliken, Shelbyville, Tennessee, for the appellant,
James Mark Parker.
Richard L. Dugger, Shelbyville, Tennessee, for the appellees,
Timothy Parker and Dolly P. Robbins.
G. Clement, Jr., P.J., M.S., delivered the opinion of the
Court, in which Andy D. Bennett and Richard H. Dinkins, JJ.,
MEMORANDUM OPINION 
G. CLEMENT, JR., P.J., M.S.
D. Parker ("Decedent") executed his will on June 3,
1996. The will and the self-proving affidavit consist of
three pages. Decedent signed his will near the bottom of page
two, and then followed his signature with a declaration which
I, Homer D. Parker, do publish and declare this to be my
Will, in the presence of each and all the subscribing
witnesses who I have requested to act as such, by signing the
attesting clause and affidavit below, pursuant to the
provisions of TCA § 32-2-111.
then signed a second time directly below the foregoing
declaration near the top of page three. Immediately
thereafter, the standard self-proving affidavit appears,
followed by the signatures of the two attesting witnesses and
a notary public. Additionally, each of the three pages bear
Decedent's initials, "H.D.P.", both handwritten
and typed at the bottom left of the page.
died on November 21, 2010. His son, James Mark Parker, whom
Decedent nominated as the executor ("Executor"),
petitioned the Chancery Court for Bedford County, Tennessee,
to admit the will to probate in common form. The court issued
letters testamentary to Executor that same day.
25, 2011, Decedent's other two children, Dolly P. Robbins
and Timothy Parker ("Contestants"), filed a
petition to contest the will.
this case was pending in the trial court, the Tennessee Court
of Appeals filed In re Estate of Bill Morris, No.
M2014-00874-COA-R3-CV, 2015 WL 557970 (Tenn. Ct. App. Feb. 9,
2015). The facts of that case parallel the facts of this case
in that the witnesses to the Morris will signed the
self-proving affidavit but did not sign the body of the will.
Id. at *2. Because the witnesses did not sign the
body of the will, the Morris ...