Session August 22, 2017
from the Chancery Court for Warren County No. 3159P Larry B.
Stanley Jr., Chancellor
appeal arises from a will contest. The contestant insists the
purported Last Will and Testament of the decedent, dated June
19, 2015, is invalid because the attesting witnesses, who
duly executed the attestation affidavit, failed to affix
their signatures to the will as required by the Tennessee
Execution of Wills Act at the time the will was executed. The
proponent insists the will was validly executed based on a
2016 amendment to Tenn. Code Ann. § 32-1-104, which
applies to wills executed prior to July 1, 2016, and states
"to the extent necessary for the Will to be validly
executed, witness signatures affixed to an affidavit meeting
the requirements of § 32-2-110 shall be considered
signatures to the Will." The trial court ruled that the
2016 amendment did not apply because the testator died before
it went into effect. Consequently, the 2015 will was invalid
because it was not executed in accordance with the law then
in effect. We have determined that the 2016 amendment to
Tenn. Code Ann. § 32-1-104 applies retrospectively to
wills executed prior to July 1, 2016, because that is the
clear and unambiguous intent of the legislation. We have also
determined that the retrospective application of the law does
not impair any vested legal right of the contestant.
Therefore, we reverse and remand for further proceedings
consistent with this opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Reversed and Remanded
A. McCreary, Murfreesboro, Tennessee, for the appellant,
Michael D. Galligan, McMinnville, Tennessee and Thomas K.
Austin, Dunlap, Tennessee, for the appellee, Derwood Stewart.
G. Clement Jr., P.J., M.S. delivered the opinion of the
Court, in which Andy D. Bennett, J. and J. Steven Stafford,
P.J., W.S., joined.
G. CLEMENT JR., P.J., M.S.
facts of this case are not in dispute. On June 19, 2015,
Veronica Stewart ("Ms. Stewart") executed her Last
Will and Testament ("the will"). Ms. Stewart signed
the bottom of each of the three pages of her will in the
presence of two witnesses, and the witnesses signed the
attestation affidavit in the presence of Ms. Stewart, each
other, and a notary public; however, the witnesses failed to
sign the will.
Stewart died on September 16, 2015, without a surviving
spouse or issue. On September 22, the will was admitted to
probate in the Chancery Court for Warren County, Tennessee,
and the court issued letters testamentary to the executor of
the estate, Ms. Stewart's accountant. The primary
beneficiary under the will was Lazaro Serna ("Mr.
Serna"), an unrelated individual. Three days later, Ms.
Stewart's father, Derwood Stewart ("Mr.
Stewart"), who was an heir-at-law, filed a verified
complaint contesting the will. Mr. Serna filed an answer in
which he insisted that the will was valid.
January 11, 2016, Mr. Stewart filed a motion for summary
judgment. Relying primarily on In re Estate of
Morris, M2014-00874-COA-R3-CV, 2015 WL 557970, at *1
(Tenn. Ct. App. Feb. 9, 2014), Mr. Stewart argued that the
will did not meet the execution requirements set forth in
Tenn. Code Ann. § 32-1-104, because the witnesses to Ms.
Stewart's will failed to sign the will.
April 16, 2016, Governor Haslam signed House Bill 1472 into
law. It was subsequently codified as an amendment to Tenn.
Code Ann. § 32-1-104. Pursuant to the amendment, wills
executed prior to July 1, 2016, are validly executed if the
witness signatures are affixed to an affidavit in compliance
with Tenn. Code Ann. § 32-2-110, provided that (1) the
signatures are made contemporaneously with the testator's
signature, and (2) the affidavit contains language meeting
all of the requirements of Tenn. Code Ann. §
than a week later, Mr. Serna filed a response to Mr.
Stewart's motion for summary judgment and a cross-motion
for summary judgment, arguing that under the 2016 amendment
to Tenn. Code Ann. § 32-1-104, Ms. Stewart's will
was validly executed. Mr. Stewart then filed a response to
Mr. Serna's motion and a notice with the Tennessee
Attorney General that he was challenging the
constitutionality of the 2016 amendment. In his response, Mr.
Stewart argued that a retrospective application of the 2016
amendment to the will would violate Article I, § 20 of
the Tennessee Constitution because it would interfere with
Mr. Stewart's vested rights as an heir-at-law. Mr. Serna
and the Tennessee Attorney General both argued that a
retrospective application of the 2016 amendment did not
interfere with any vested right of Mr. Stewart.
trial court ruled:
[T]he Court finds that the law enacted on April 19, 2016,
would have resulted in the decedent's Will being
perfectly executed and admissible in this Court had it been
in effect at the time of her death. The Court is required to
follow the Testamentary laws that were in place at the date
of death. Therefore, at the date of her death the
decedent's Will did not comply with the rigorous
requirements of Tennessee Code Annotated § 32-1-104 and
is therefore invalid.
appeal by Mr. Serna followed.
Serna insists that Tenn. Code Ann. § 32-1-104, as
amended by Public Chapter 843 of the Acts of 2016, applies
retrospectively to validate the execution of Ms.
Stewart's 2015 will because the legislature expressly
stated that it applies to wills executed prior to July 1,
2016. Mr. Stewart contends that the law in effect when Ms.
Stewart died in 2015 applies. He argues that applying the
2016 amendment retrospectively would violate Article I,
§ 20 of the Tennessee Constitution by impairing his
vested legal right of inheritance as the decedent's
heir-at-law. Mr. Serna counters by arguing that the
retrospective application of the amendment does not impair
any of Mr. Stewart's vested rights.
court reviews the granting of a motion for summary judgment
de novo without a presumption of correctness. Rye v.
Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235,
250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d
618, 622 (Tenn. 1997)). Accordingly, this court must make a
fresh determination of whether the requirements of Tenn. R.
Civ. P. 56 have been satisfied. Id.; Hunter v.
Brown, 955 S.W.2d 49, 50-1 (Tenn. 1997).
judgment should be granted when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Tenn. R. Civ. P. 56.04. In this case, there are no
disputed facts, and the issues present a question of law. Our
review of a trial court's determinations on issues of law
is de novo, without any presumption of correctness. Lind
v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).
first issue for our consideration is whether the 2016
amendment to Tenn. Code Ann. § 32-1-104 retrospectively
applies to the decedent's will.
Tennessee Execution of Wills Act
execution of attested wills in Tennessee is governed by the
Tennessee Execution of Wills Act codified in Tenn. Code Ann.
§ 32-1-104. In re Estate of Chastain, 401
S.W.3d 612, 618 (Tenn. 2012). When the will was executed in
2015, the mandatory requirements for the valid execution of
an attested will pursuant to the Tennessee Execution of
Wills Act were set forth in Tenn. Code Ann. § 32-1-104:
(a) The execution of a will, other than a holographic or
nuncupative will, must be by the signature of the testator
and of at least two (2) witnesses as follows:
(1) 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 ...