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In re Estate of Stewart

Court of Appeals of Tennessee, Nashville

October 20, 2017

IN RE ESTATE OF VERONICA STEWART

          Session August 22, 2017

         Appeal from the Chancery Court for Warren County No. 3159P Larry B. Stanley Jr., Chancellor

         This 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.

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

          Josh A. McCreary, Murfreesboro, Tennessee, for the appellant, Lazaro Serna.

          Michael D. Galligan, McMinnville, Tennessee and Thomas K. Austin, Dunlap, Tennessee, for the appellee, Derwood Stewart.

          Frank 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.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         The 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.

         Ms. 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.

         On 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.

         On 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. § 32-1-104(a).

         Less 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.

          The 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.

         This appeal by Mr. Serna followed.

         Mr. 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.

         Standard of Review

         This 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).

         Summary 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).

         Analysis

         The first issue for our consideration is whether the 2016 amendment to Tenn. Code Ann. § 32-1-104 retrospectively applies to the decedent's will.

         I. The Tennessee Execution of Wills Act

         The 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[1] 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 ...

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