Session June 29, 2017
from the Probate Court for Shelby County No. PR005326 Karen
D. Webster, Judge.
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
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.
Armstrong, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J.,
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.
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.
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
1. Decedent's purported last will and testament dated
March 21, 2013 was not executed in strict compliance with TCA
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.
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. §32-1-104(b) does not operate to integrate, into
the purported will, the witnesses' signatures on the