In Frustrating the Intent of the Testator, I observed that many appellate courts seem to delight in invalidating wills that were clearly executed by the testator. If judges take pleasure in destroying the estate plans of the recently departed, Hon. Kenny Armstrong of the Tennessee Court of Appeals should be rapturous to the point of wetting his pants in having pulled the rug out from under an unfortunate deceased testator, his attorney, and two well-meaning, but displaced, witnesses. It is the epitome of formalism over substance.
On October 10, 2008, Bill Morris (“Decedent”) executed his Last Will and Testament. In re Estate of Morris, 2015 WL 557970, 1 (Tenn. Ct. App. February 9, 2015). The last two pages of the document show that the drafting attorney went to great lengths to establish that the testator intended to sign his will and, in fact, signed it. However, the Tennessee Court of Appeals managed to find grounds to throw out the will as out of conformity with the Tennessee wills statute.
As is typical in these cases, the court first said that it would “endeavor to effectuate a testator’s intent.” Id. at 4. The court then invalidated the will because the word “affidavit” appears between the testator’s signature and the witnesses’ attestation. According to the court, by signing below the “affidavit,” but not above it, the witnesses signed the affidavit, which, of course, was part of the document, but not the will, itself.
It is particularly ironic that the court stated, “There is no dispute that the testator properly signed his will at the end of the document.” Id. at 2. Thus, in a paroxysm of perversity, the court vitiated the testator’s signature by finding a hyper-technical error in the witnesses’ signatures intended to verify the testator’s signature.
In Frustrating the Intent of the Testator, I said:
An attorney should spend at least an hour gathering the facts for even the simplest estate, and at least an hour going over the documents with the client, before they are executed. Attorneys who rush through will executions do not serve their clients properly.
If only it were that simple. It is clear that Bill Morris’s attorney, the witnesses, and Bill, himself, did their very best to execute his will correctly. Sadly, best efforts are never enough when there is a judge determined to screw up the testator’s estate plan.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2015 John B. Payne, Attorney