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In re Estate of Fant

Court of Appeals of Tennessee, Jackson

August 15, 2017

IN RE ESTATE OF CHARLES EDWARD FANT III

          Session June 29, 2017

         Appeal from the Probate Court for Shelby County No. PR005326 Karen D. Webster, Judge.

         This is a will contest. The affidavit attached to the purported will was signed, in the presence of the testator, by two witnesses. At the hearing on the will contest, both witnesses and the notary public testified as to the validity of signatures on the purported will. The trial court held that the will and accompanying affidavit were not in strict compliance with the statute and denied admission of the will to probate. On appeal, the proponent of the purported will argues that the will satisfied the recent statutory requirements of Tennessee Code Annotated Section 32-1-104(b) such that the signatures of both witnesses were integrated into the will. Concluding that the witnesses' signatures were integrated into the will pursuant to Tennessee Code Annotated Section 32-1-104(b), and that the other statutory requirements were met, we reverse the trial court's ruling.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Reversed and Remanded.

          Blanchard E. Tual and Forest J. Dorkowski, Memphis, Tennessee, for the appellant, Luanne M. Fant.

          Christina M. Burdette, Germantown, Tennessee, for the appellee, Michael B. Fant.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         In 2012, Charles Edward Fant, III ("Decedent") was diagnosed with esophageal cancer that quickly metastasized to his liver and bones. The Decedent was married to Luanne M. Fant ("Appellant"), his wife of 30 years. Decedent had one adult son, Michael B. Fant ("Appellee" or "Mr. Fant"). On March 21, 2013, Appellant drove Decedent to his office in order to execute his will. Attorney John Wilkinson drafted the will but was not present for its execution. Decedent asked Barbara Duncan and Emily Green, two of his long-time employees, to sign as witnesses to his will. Decedent asked Lisa Taylor, another long-time employee, to notarize the witnesses' signatures on the affidavit attached to his will. Decedent also declared the will to be his last will and testament. According to the testimony, after he signed the will, Decedent watched the two witnesses sign the affidavit to the will. The notary watched Decedent and the two witnesses sign the documents before affixing her seal to the affidavit. The two witnesses, the notary, and the Decedent were all in the same room when the will and affidavit were executed. Both witnesses and the notary testified that, at the time of the execution of the will, Decedent was of sound mind and disposing memory. The Decedent died on May 13, 2013.

         On February 8, 2016, Mr. Fant filed a petition requesting that Mrs. Fant bring forward Decedent's last will and testament or, in the alternative, that Mr. Fant be appointed as administrator of Decedent's estate. On April 12, 2016, Mrs. Fant filed a counter-petition requesting that Decedent's will, dated March 21, 2013, be admitted to probate and that Mrs. Fant be appointed as executrix of Decedent's estate. Mr. Fant filed a response to Mrs. Fant's counter-petition denying that the purported will dated March 21, 2013 was Decedent's last will and testament. Mr. Fant argued that the purported will was not signed by witnesses because the signatures were on an otherwise blank piece of paper attached to a document titled "affidavit." Mr. Fant requested that the trial court dismiss Mrs. Fant's counter-petition and that Mr. Fant be appointed to administer Decedent's estate.

         A hearing took place on June 21, 2016. Mrs. Fant put on proof as to the facts stated above. At the conclusion of Appellant's proof, Mr. Fant did not offer any proof or testimony. On November 14, 2016, the trial court entered an order denying Mrs. Fant's counter-petition to admit the Decedent's purported will to probate and ruled as follows:

1. Decedent's purported last will and testament dated March 21, 2013 was not executed in strict compliance with TCA §32-1-104(a).
2. TCA §32-1-104(b) does not operate to integrate the witnesses signatures under the affidavit attached to Decedent's purported will into the will.
3. The purported will does not qualify as a validly executed testamentary instrument under TCA §32-1-104 capable and worthy of being admitted to probate.
***
5. That an Intestate Estate for Decedent, Charles Edward Fant, III, is hereby opened.

         Mrs. Fant appeals.

         II. Issues

         The Appellant raises nine issues in her brief. However, we perceive that there are four dispositive issues, which we state as follows:

1. Whether the trial court erred in ruling that the affidavit did not meet the requirements of Tenn. Code Ann. §32-2-110 because it did not include a statement that the decedent was of sound mind and disposing memory?
2. Whether the trial court erred in ruling that Tenn. Code Ann. ยง32-1-104(b) does not operate to integrate, into the purported will, the witnesses' signatures on the ...

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