In Re Estate of Charles Edward Fant, III

08/15/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 29, 2017 Session
IN RE ESTATE OF CHARLES EDWARD FANT III
Appeal from the Probate Court for Shelby County
No. PR005326 Karen D. Webster, Judge
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No. W2016-02498-COA-R3-CV
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This is 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 ruling.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court
Reversed and Remanded.
KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
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.
OPINION
I. Background
In 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.
On 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.
A 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 follows:
1. Decedent’s purported last will and testament dated March 21, 2013
was not executed in strict compliance with TCA §32-1-104(a).
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.
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***
5. That an Intestate Estate for Decedent, Charles Edward Fant, III, is
hereby opened.
Mrs. Fant appeals.
II. Issues
The 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 affidavit thus rendering the will invalid?
3. Whether the trial court erred in ruling that the Decedent did not sign the
will in Barbara Duncan’s presence?
4. Whether the trial court erred in its decision not to admit the Decedent’s
March 21, 2013 will to Probate?
III. Standard of Review
The issues in this appeal involve statutory interpretation. Statutory interpretation
is a question of law, which we review de novo, affording no presumption of correctness
to the conclusions of the trial court. State v. Crank, 468 S.W.3d 15, 21 (Tenn. 2015); In
re Baby, 447 S.W.3d 807, 817 (Tenn. 2014); Mansell v. Bridgestone Firestone N. Am.
Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013) (citing Waters v. Farr, 291 S.W.3d 873,
882 (Tenn. 2009)).
The principles of statutory interpretation are well established. When reading
“statutory language that is clear and unambiguous, we must apply its plain meaning in its
normal and accepted use, without a forced interpretation that would limit or expand the
statute’s application.” Eastman Chemical Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.
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2004). “[W]e presume that every word in a statute has meaning and purpose and should
be given full effect if the obvious intention of the General Assembly is not violated by so
doing.” SunTrust Bank v. Burke, 491 S.W.3d 693, 695 (Tenn. Ct. App. 2015), perm.
app. denied (Tenn. June 15, 2015) (quoting Lind v. Beaman Dodge, 356 S.W.3d 889,
895 (Tenn. 2011)). “When a statute is clear, we apply the plain meaning without
complicating the task.” In re Baby, 447 S.W.3d 807, 817 (Tenn. 2014). However, when
a statute is ambiguous, “we may reference the broader statutory scheme, the history of the
legislation, or other sources.” Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836
(Tenn. 2008). Our duty in construing statutes is to ascertain and give effect to the
intention and purpose of the legislature. See Lipscomb v. Doe, 32 S.W.3d 840, 844
(Tenn. 2000). To the extent that these issues involve questions of fact, our review of the
trial court’s ruling is de novo with a presumption of correctness. Tenn. R. App. P. 13.
Accordingly, we may not reverse these findings unless they are contrary to the
preponderance of the evidence. Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn.
2013).
IV. Analysis
A. Testator’s Capacity
Tennessee Code Annotated Section 32-1-104(a) reads as follows:
(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 testator’s name; and
(D) In any of the above cases the act must be done in the presence of
two (2) or more attesting witnesses.
(2) The attesting witnesses must sign:
(A) In the presence of the testator; and
(B) In the presence of each other.
Tenn. Code Ann. §32-1-104(a). The trial court determined that the purported will ended
on page six and the signatures of the two witnesses were part of a self-proving affidavit
that began on page seven. Consequently, the trial court held that the witnesses signatures
were not part of the will and that “Decedent’s purported will was not executed in strict
compliance with [Tennessee Code Annotated Section] 32-1-104(a).” This portion of the
trial court’s ruling is in accordance with In re Estate of Morris, No. M2014-00874-COA-
R3-CV, 2015 WL 557970, at *4 (Tenn. Ct. App. Feb. 9, 2015), perm. app. denied (June
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15, 2015), in which we held that the witnesses’ signatures, on the affidavit, where the
witnesses did not sign the actual will, do not satisfy the statutory formalities for executing
a will in this state. Id.
However, in 2016, the Legislature added subsection (b) to Section 36-1-104 in
order to allow the integration of the affidavit (and the witnesses’ signatures thereon) into
the will such that an otherwise validly executed will may be entered into probate. The
new section of the statute reads as follows:
(b) (1) For wills executed prior to July 1, 2016, 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, provided that:
(A) The signatures are made at the same time as the testator signs the will
and are made in accordance with subsection (a); and
(B) The affidavit contains language meeting all the requirements of
subsection (a).
(2) If the witnesses signed the affidavit on the same day that the testator
signed the will, it shall be presumed that the witnesses and the testator
signed at the same time, unless rebutted by clear and convincing evidence.
If, pursuant to this subsection (b), witness signatures on the affidavit are
treated as signatures on the will, the affidavit shall not also serve as a self-
proving affidavit under § 32-2-110. Nothing in this subsection (b) shall
affect, eliminate, or relax the requirement in subsection (a) that the testator
sign the will.
Tenn. Code Ann. §32-1-104(b).
In order to determine whether the witnesses’ signatures on the self-proving
affidavit should be integrated as signatures to the will, the trial court considered whether
the affidavit complied with the requirements of Tennessee Code Annotated section 32-2-
110, which reads in pertinent part:
Any or all of the attesting witnesses to any will may, at the request of the
testator or, after the testator’s death, at the request of the executor or any
person interested under the will, make and sign an affidavit before any
officer authorized to administer oaths in or out of this state, stating the facts
to which they would be required to testify in court to prove the will, which
affidavit shall be written on the will or, if that is impracticable, on some
paper attached to the will, and the sworn statement of any such witness so
taken shall be accepted by the court of probate when the will is not
contested as if it had been taken before the court.
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Tenn. Code Ann. § 32-2-110. Ultimately, the trial court held that Tennessee Code
Annotated Section 32-1-104(b) does not operate to integrate the witnesses’ signatures
into the will because the affidavit is silent as to Decedent’s capacity to execute the will.
The language of Tennessee Code Annotated Section 32-2-110 does not require the
accompanying affidavit to contain a statement concerning the testator’s capacity. In fact,
in its ruling, the trial court stated that there was no statutory requirement mandating the
recitation of the testator’s capacity in the affidavit. Additionally, the trial court explicitly
referenced the notes to Tennessee Code Annotated Section 32-4-105 regarding the proof
of wills stating that capacity is presumed unless there are suspicious circumstances. This
principle of law is not a new concept:
[T]he law presumes that every man is sane until the contrary is shown. . . .
And this presumption will stand until some evidence is introduced to
remove it. If a presumption may be removed, and must be by evidence
adduced by the party alleging insanity. We are of opinion, therefore, that in
the examination of the attesting witnesses, in the first instance, as to the
formal execution of the will (there being no circumstances of suspicion
surrounding it), it is not necessary to interrogate them as to the sanity of the
testator. . . . The law presuming that every man is sane until the contrary is
shown, the burden of proving the unsoundness of mind in the testator is on
the party impeaching the will for this cause.
Bartee v. Thompson, 67 Tenn. 508, 511, 1875 WL 4645, at *1 (1875) (internal citations
omitted). In this case, Mr. Fant never questioned Decedent’s capacity, and no proof was
presented that Decedent lacked capacity at the time he signed the purported will. Mr.
Fant’s petition simply alleges that the purported will “fails to meet the strict statutory
requirements necessary to execute a will pursuant to [Tennessee Code Annotated
Section] 32-1-104.” The record contains no legal basis to support Mr. Fant’s theory that
the affidavit must contain a statement regarding Decedent’s capacity. Instead, Mr. Fant
cites the sample form from Pritchard on the Law of Wills and Administration of Estates
as the basis for his argument that the affidavit must contain a statement regarding
Decedent’s capacity.
The statute, i.e., Tennessee Code Annotated Section 32-1-104(b), however,
specifically prohibits affidavits, which are integrated into the will, from being used as
self-proving affidavits. Here, three witnesses, all of whom were long-time employees of
Decedent, testified that Decedent was of “sound mind and disposing memory” when he
executed the purported will. Accordingly, we conclude that Tennessee Code Annotated
Section 32-1-104(b) operates to integrate the witnesses’ signatures into the will even
though the affidavit is silent as to Decedent’s capacity to execute the will.
B. Presence Defined
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The trial court also determined that the purported will was not proven because
Decedent did not sign his will in the “presence” of Ms. Duncan. In its ruling, the trial
court cites Ms. Duncan’s testimony, in which Ms. Duncan testified as follows:
I was at my desk, I wasn’t standing over there actually seeing him make his
signature. But I saw them over there notarizing the will and him over there
signing. But I – No, I was not actually over there at the desk, no. I was at
my desk when I was witnessing it.
The trial court found that it was “questionable if Decedent signed the purported will in
[Ms. Duncan’s] presence as required under Tenn. Code Ann. §32-1-104(a).” The ruling
goes on to state that:
[D]ue to Barbara Duncan’s position of approximately eleven to twelve feet
away from the desk where the Decedent executed his will and due to the
fact that all desks in the room were partitioned by a small wall; the
Decedent did not sign his will in her presence, as she could not see him
place his signature. Thus, this Court finds that the purported will was not
proven in Court.
As set out above, Tennessee Code Annotated Section 32-1-104(a) specifies three
scenarios by which a witness may acknowledge a will: (1) The testator may sign the will;
(2) The testator may acknowledge his signature already made; or (3) the testator may
have someone else sign the testator’s name. Any of these three options must be
completed in the presence of two or more attesting witnesses. Because a testator may
acknowledge a signature already made, there is no requirement that the witnesses actually
see the testator make his signature on the will. In In re Estate of Ross, 969 S.W.2d 398,
401 (Tenn. Ct. App. 1997), this Court explained:
This jurisdiction has no case directly addressing the elements necessary for
the testator and witnesses to be in each others “presence.” This term is
generally construed according to the circumstances of each case. 79
AmJur2d, Wills, § 321 (1975). Emphasis is placed on the ability of the
testator to actually see or be able to see the witnesses if he/she wished. Id.;
Stanley v. Kelley, 267 Ala. 379, 102 So. 2d 16, 18 (1958) (“[it] is not
necessary to prove that testator actually saw the witnesses sign their names
to the will. It is sufficient if, from their relative positions, he could see
them.”); Moore v. Glover, 196 Okla. 177, 163 P.2d 1003, 1006 (1945)
(witness and testator sufficiently in each others’ presence where testator
waited outside in the car while witness signed at desk inside building;
testator could see witness through large glass window). An attestation in
the same room or close vicinity with the testator is generally considered to
be in his/her presence, unless there is a physical obstacle blocking the view.
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Id. at § 322; In re Estate of Holden, 261 Minn. 527, 113 N.W.2d 87, 92
(1962); Estate of Politowicz, 124 N.J. Super. 9, 304 A.2d 569 (1973).
These authorities reveal that relatively short distances, such as across the
bank lobby, may not necessarily prevent the testator and witnesses from
being in each others’ presence.
In re Estate of Ross, 969 S.W.2d 398, 401 (Tenn. Ct. App. 1997). In Ross, the witness
knew the testator and saw him enter the bank and conduct business with another
employee. Although the witness testified that she did not know testator was signing a
will, when she signed as a witness, she recognized testator’s signature and was expressly
told it was testator’s will. Id. This scenario clearly satisfies Tennessee Code Annotated
Section 32-1-104(a)(1)(B) and (D). The instant case is similar to Ross. During the
hearing, Ms. Duncan was asked the following questions and gave the following
responses:
Q. How long have you worked [in Decedent’s office]?
A. Twenty -- 25, 26 years
***
Q. Did you know what you were signing?
A. Yes. Uh-huh.
Q. So he must have said something to you. What did he say?
A. That – I mean, I was at my desk and he, when he signed it, he
wanted me to witness it. They called me over to sign it.
Q. Did you actually see Mr. Fant sign the will?
A. I saw him standing at the desk, signing it. But, like I said, I was at
my desk working and they were at Lisa’s desk, which is probably
11, 12 feet from mine.
Q. So until you were called over, you weren’t really paying attention?
A. I was working and I was looking over there and we were saying
things back and forth. And I heard what they were talking about, I
knew what they were doing. I knew why they were at the office that
day.
As in In re Estate of Ross, Ms. Duncan testified that she knew the Decedent, and
could see and hear the Decedent. Even if she could not see Decedent actually place his
signature on the will, at the time she signed as a witness, Ms. Duncan recognized
Decedent’s signature and knew that she was witnessing Decedent’s will. The trial court’s
holding that, to validly witness the will, Ms. Duncan was required to actually see
Decedent make his signature, is, respectfully, not the law. The argument that Decedent
did not sign the will in the presence of Ms. Duncan because she could not see him place
his signature is not dispositive because the statute does not require it. As set out above,
Tennessee Code Annotated Section 32-1-104(a) explicitly provides that the testator may
acknowledge a signature already made. Here, there is no question that Decedent
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acknowledged his signature on his will when he asked Ms. Duncan to step across the
room to witness it. Courts endeavor to effectuate a testator's intent “unless prohibited by
a rule of law or public policy,” In re Estate of McFarland, 167 S.W.3d 299, 302 (Tenn.
2005), and courts will sustain a will as legally executed if it can be done consistently with
statutory requirements, Leathers v. Binkley, 264 S.W.2d 561, 563 (Tenn. 1954).
Accordingly, we conclude that Decedent’s purported last will and testament dated March
21, 2013 qualifies as a validly executed testamentary instrument under Tennessee Code
Annotated Section 32-1-104 and should be admitted to probate.
V. Conclusion
For the foregoing reasons, we reverse the trial court’s order and remand for further
proceedings as may be necessary and are consistent with this opinion, including, but not
limited to, admitting Decedent’s will to probate. Costs of the appeal are assessed against
Appellee, Michael B. Fant, for all of which execution may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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