COURT COUNTY .OF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... .. : Index No. PROBATE OF WILLS IN COMMON FORM1 — PROOF OF FACTS : Will must be original—not a copy. Make sure the affidavit of will witnesses is original and in proper form. Some attorneys may want Calendar No. to proceed and bring in the original “later this morning”. We will not open an estate to probate a will until we have the original in hand. We will not attest to, or certify copies of, unprobated wills. In T.C.A. § 32-2-108 Copies of wills as evidence, the words such : JUDICIAL SUBPOENA Plaintiff(s) wills refer to wills which have been probated. ATTESTED WILL2 (“Formal Will”) -against: FACTS REQUIRED _that Testator had testamentary intent as signified (by actions or otherwise3) _Testator tells witnesses the instrument is his will4 _that Testator signed, OR acknowledged his signature already made, OR at his discretion and in his presence : had another sign his name _Testator’s signing was in presence of 2 or more witnesses5 _That the witnesses signed in presence of 6 Testator and in presence of each other _that Testator had testamentary capacity (sound mind + age 18 or over). 7 PROOF OF FACTS _Testimony of at least 1 subscribing witness, if living.: _Subscribing witnesses may appear by affidavit.8 _The attesting affidavit must be written on the will or attached thereto _The affidavit may be obtained by Testator, OR AFTER : DEATH.OF .TESTATOR,. the .affidavit . . . . be . . . . . . .Defendant(s) . . or. other interested person. _If there is no affidavit and the . . . . . . . . . . . . . . . . . . . . may . . obtained by .the executor . . . . .. ....... subscribing witnesses cannot be found, the resort is secondary evidence sufficient to establish with reasonable certainty all the facts necessary for the execution of a valid will, usually, but not limited to, testimony as to the signatures of all witness—even if there are more than two—and two witnesses to the signature of Testator.9 If there is no attesting clause, proof will also be required for the testamentary intent and the testamentary capacity. THE PEOPLE OF If will is holographic, without formal execution, two disinterested parties must appear to prove the HOLOGRAPHIC WILL THE STATE OF NEW YORK handwriting. (This is in addition to otherwise proving the will to be in effect, etc.) TO FACTS REQUIRED _that all material provisions are totally in the handwriting of Testator.10 _that Testator “signed” the will (generally that the will must show on its face somewhere the identity of Testator.) _While there is no statutory requirement for the will to be dated, the presence or absence of a date may be probative evidence as to the document’s validity or of Testator’s testamentary intent. PROOF OF FACTS _Testator’s handwriting: proven by the testimony of two11 witnesses12 _testamentary intent: proven by the GREETINGS: testimony of one or more witnesses.13 _the document or the circumstances must clearly show Testator intends for the writing to be his will _Testamentary capacity (sound mind + age 18 or over): one or more witnesses.14 WE COMMAND YOU, that all business and excuses being laid aside, you and each of you attend before NUNCUPATIVE WILL15 the Honorable Court FACTS REQUIRED_testator must be in imminent peril of at the _testator must possess testamentary capacity to make a will , death located at County of property only _cannot exceed $1,000 in value _neither revokes nor changes an existing written will _two _applies to personal disinterested witnesses _must be reduced day of by witness within 30at to writing in room , on the , 20 , days of declarationin the o'clock noon, and at any recessed PROOF OF FACTS date, to not be probated within 14 days nor more than this action on the16part of the of facts required by the or adjourned _must testify and give evidence as a witness in 6 months of death _testimony two disinterested witnesses17 _both disinterested witnesses must testify live 1 The elements of proof for Common Form Probate do not apply to proof of contested wills or solemn form probate. There are many ways to prove the requirements of Your failure but one method of proof. subpoena is punishable forearmed with the presumption against intestacy. This liable to a will. The attesting witness affidavit isto comply with this Also, the proponent of the will isas a contempt of court and will make you analysis is not by any means a definitive statement on how to prove wills. Althoughissued for a maximum penalty15 February 1941, you must see T.C.A. §§ 32-1-108,a the party on whose behalf this subpoena was rare now, note that for wills made before of $50 and all damages sustained as 32-1-109, 32-1-110, and 32-1-111. result of your to a fact. to comply. 2 To attest is to bear witness failure A subscribing witness is one who merely attests the signature of a party to an instrument. Without an attesting clause, the witness is nothing more—without further proof—than a subscribing witness, as we do not know what facts are being attested beyond the party’s signature. The attestation clause is where the witnesses certify the instrument has been executed before them, and has been done so in the manner of statutory requirement, i.e., as stated in Witness, of an attesting , one of the Justices of Tenn. FACTS REQUIRED. The presenceHonorable clause raises a presumption that the recitals therein were true. See, e.g., Needham v. Doyle, 39the App. 597, 286 S.W.2d 601 (1955). Without the attesting clause, there is noday of such presumption. Court in County, , 20 3 Hale v. Bradley, 817 S.W.2d 320 (Tenn. Ct. App. 1991). 4 Otherwise known as “publication”. 5 T.C.A. § 32-1-103. Witnesses — Who may act. Any person competent to be witness generally, but must not receive a personal or beneficial interest (unless there are 2 other non-interested witnesses or the interest is forfeited to the extent it exceeds what the witness would have taken intestate.) 6 T.C.A. § 32-1-104. Will other than holographic or nuncupative. (Attorney must sign above and type name below) 7 T.C.A. § 32-2-104. Proof of will generally. 8 T.C.A. § 32-2-110. Affidavit of witnesses to prove will. 9 Pritchard on Wills and Administration of Estates, 5th ed. vol. 1, § 347, pp 529 – 530, and cases cited therein. 10 T.C.A. § 32-1-105. Holographic will. Because of this, the holographic will cannot normally incorporate by reference a document not complying with this Attorney(s) for requirement. But, if that’s a problem, you may want to look at the doctrine of facts of independent significance as discussed in In re Tipler, 10 S.W.3d 244 (Tenn. App. 1998). 11 The provision for at least 1 subscribing witness, if living, in T.C.A. § 32-2-104, does not apply to holographic wills. Two witnesses are required. 12 T.C.A. § 32-1-105. Holographic will. There is no provision in the statutes for these handwriting witnesses to come before the court by affidavit as there is for attesting witnesses. As a foundation, handwriting witnesses must show the Court how they were knowledgeable of Testator’s handwriting. Bear in mind that witnesses are required to be “credible”. On a continuum, witness credibility will range from one end of arms-length testimony to the totally interested witness at the other end. While there is no law prohibiting a person taking under a holographic will from testifying to the hand writing, the witness’s credibility may present a severe probative Office and P.O. Address evidence problem. 13 Smith v Smith, 33 Tenn. App. 507, 232 S.W.2d 338 (1949). 14 T.C.A. § 32-1-102. Persons qualified to make a will. 15 T.C.A. § 32-1-106. Nuncupative will. 16 Telephone No.: T.C.A. § 32-2-106. Proof of nuncupative will. 17 T.C.A. § 32-1-103. Witnesses — Who may act. Any person competent to be witness generally, but must notNo.: a personal or beneficial interest (unless there are Facsimile receive 2 other non-interested witnesses or the interest is forfeited to extent it exceeds what witness would have taken intestate.) PROBATE OF WILLS IN COMMON FORM E-Mail Address: – PROOF OF FACTS Page 1 of 1. Mobile Tel. No.: [Form 088, Rev. 2003.09.18] American LegalNet, Inc. www.USCourtForms.com