flag of tennessee2024 Tennessee Code Unannotated

Title 32 Wills

Chapter 1 Execution of Wills
Part 1 Execution Generally
§ 32-1-101. Chapter definitions.
  1. As used in this chapter, unless the context otherwise requires:
    1. (1) “Person” includes either man or woman, single or married; and
    2. (2) “Will” includes codicil.
Backlinks (3)
History (3)
  • Acts 1941, ch. 125, § 1
  • C. Supp. 1950, § 8098.1
  • T.C.A. (orig. ed.), § 32-101.
§ 32-1-102. Persons qualified to make a will.
  1. Any person of sound mind eighteen (18) years of age or older may make a will.
History (3)
  • Acts 1941, ch. 125, § 2
  • C. Supp. 1950, § 8098.2
  • T.C.A. (orig. ed.), § 32-102.
§ 32-1-103. Witnesses — Who may act.
  1. (a) Any person competent to be a witness generally in this state may act as attesting witness to a will.
  2. (b) No will is invalidated because attested by an interested witness, but any interested witness shall, unless the will is also attested by two (2) disinterested witnesses, forfeit so much of the provisions therein made for the interested witness as in the aggregate exceeds in value, as of the date of the testator's death, what the interested witness would have received had the testator died intestate.
  3. (c) No attesting witness is interested unless the will gives to the attesting witness some personal and beneficial interest.
History (3)
  • Acts 1941, ch. 125, § 3
  • C. Supp. 1950, § 8098.3
  • T.C.A. (orig. ed.), § 32-103.
§ 32-1-104. Will other than holographic or nuncupative — Signatures.
  1. (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. (1) The testator shall signify to the attesting witnesses that the instrument is the testator's will and either:
      1. (A) The testator sign;
      2. (B) Acknowledge the testator's signature already made; or
      3. (C) At the testator's direction and in the testator's presence have someone else sign the testator's name; and
      4. (D) In any of the above cases the act must be done in the presence of two (2) or more attesting witnesses;
    2. (2) The attesting witnesses must sign:
      1. (A) In the presence of the testator; and
      2. (B) In the presence of each other.
  2. (b)
    1. (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:
      1. (A) The signatures are made at the same time as the testator signs the will and are made in accordance with subsection (a); and
      2. (B) The affidavit contains language meeting all the requirements of subsection (a).
    2. (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.
History (4)
  • Acts 1941, ch. 125, § 4
  • C. Supp. 1950, § 8098.4
  • T.C.A. (orig. ed.), § 32-104
  • Acts 2016, ch. 843, § 1.
§ 32-1-105. Holographic will.
  1. No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator's handwriting must be proved by two (2) witnesses.
History (3)
  • Acts 1941, ch. 125, § 5
  • C. Supp. 1950, § 8098.5
  • T.C.A. (orig. ed.), § 32-105.
§ 32-1-106. Nuncupative will.
  1. (a) A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be:
    1. (1) Declared to be the testator's will by the testator before two (2) disinterested witnesses;
    2. (2) Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and
    3. (3) Submitted for probate within six (6) months after the death of the testator.
  2. (b) The nuncupative will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars ($1,000), except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand dollars ($10,000).
  3. (c) A nuncupative will neither revokes nor changes an existing written will.
History (3)
  • Acts 1941, ch. 125, § 6
  • C. Supp. 1950, § 8098.6
  • T.C.A. (orig. ed.), § 32-106.
§ 32-1-107. Foreign execution.
  1. A will executed outside this state in a manner prescribed by §§ 32-1-101 — 32-1-108, inclusive, or a written will executed outside this state in a manner prescribed by the law of the place of its execution or by the law of the testator's domicile at the time of its execution, shall have the same force and effect in this state as if executed in this state in compliance with those sections.
History (3)
  • Acts 1941, ch. 125, § 7
  • C. Supp. 1950, § 8098.7
  • T.C.A. (orig. ed.), § 32-107.
§ 32-1-108. Application of §§ 32-1-101 — 32-1-108.
  1. Sections 32-1-101 — 32-1-108, inclusive, shall not apply to wills executed in this state on or before February 15, 1941, or to wills offered for ancillary probate in this state that have been admitted to probate in the state or country of the testator's domicile.
Backlinks (3)
History (3)
  • Acts 1941, ch. 125, § 8
  • mod. C. Supp. 1950, § 8098.8
  • T.C.A. (orig. ed.), § 32-108.
§ 32-1-109. Requisites of will executed on or before February 15, 1941.
  1. No last will or testament executed on or before February 15, 1941, shall be good or sufficient to convey or give an estate in lands, unless written in the testator's lifetime, and signed by the testator, or by some other person in the testator's presence and by the testator's direction, and subscribed in the testator's presence by two (2) witnesses at least, neither of whom is interested in the devise of the lands.
History (5)
  • Code 1858, § 2162 (deriv. Acts 1784 (Apr.), ch. 22, § 11)
  • Shan., § 3895
  • Code 1932, § 8089
  • modified
  • T.C.A. (orig. ed.), § 32-109.
§ 32-1-110. Requisites of holographic will executed on or before February 15, 1941.
  1. A paper writing, written on or before February 15, 1941, appearing to be the will of a deceased person, written by the deceased person, having the deceased person's name subscribed to it, or inserted in some part of it, and found, after the deceased person's death, among the deceased person's valuable papers, or lodged in the hands of another for safekeeping, shall be good and sufficient to give and convey lands, if the handwriting is generally known by the deceased person's acquaintances, and it is proved by at least three (3) credible witnesses that they verily believe the writing, and every part of it, to be in the deceased person's hand.
History (5)
  • Code 1858, § 2163 (deriv. Acts 1784 (Oct.), ch. 10, § 5)
  • Shan., § 3896
  • Code 1932, § 8090
  • modified
  • T.C.A. (orig. ed.), § 32-110.
§ 32-1-111. Married women's power to dispose of property by will.
  1. (a) Married women, after February 15, 1941, may dispose of their property by will according to §§ 32-1-101 — 32-1-108.
  2. (b) Wills executed on or before February 15, 1941, by married women twenty-one (21) years of age or over, are valid to dispose of their realty or personalty, legal or equitable, in as complete manner as if executed by femes sole.
History (7)
  • Code 1858, § 2168 (deriv. Acts 1851-1852, ch. 180, § 4)
  • Acts 1869-1870, ch. 99, §§ 1, 6
  • Shan., § 3901
  • mod. Code 1932, § 8098
  • modified
  • Acts 1976, ch. 529, § 19
  • T.C.A. (orig. ed.), § 32-111.
§ 32-1-112. Deposit of will with probate court.
  1. (a) With respect to a testator who is living, any will in writing, being enclosed in a sealed wrapper, and having endorsed thereon the name of the testator, the testator's place of residence and the testator's social security number or driver license number, if any, and the day when, and the person by whom, it is delivered, may be deposited by the person making the will, or by any person for the person making the will, with the court exercising probate jurisdiction in the county where the testator lives. With respect to a deceased testator, any will in writing may be deposited by any person with the court exercising probate jurisdiction in the county where the testator lived at the time of the testator's death. The preceding provisions shall apply only if the clerk of the probate court has a secure vault or safe for the safe keeping of the will. The probate court shall receive and safely and securely keep any such will, and give a certificate of the deposit thereof, and for this service shall charge a fee of five dollars ($5.00).
  2. (b) The will shall, during the lifetime of the testator, be delivered only to the testator, or to some person authorized by the testator by an order in writing, duly proved by the oath of a subscribing witness. Any will that is deposited after the death of the testator shall be delivered only to a person named in the will as executor, to a next of kin of the testator, or to any other person so authorized by law or court order.
  3. (c) After the death of the testator and upon submission of a death certificate or other satisfactory evidence of death as determined by the judge exercising probate jurisdiction, the will shall be opened by the court in open session and shall be made public.
  4. (d) After the death of the testator, should jurisdiction of the will for probate belong to any other court, upon request of the executor named in the will or any other person interested in its provisions, the will shall be forwarded by certified or registered mail to the other court or delivered to the executor, or to some other trusted person interested in the provisions of the will, to be presented for probate in the other court.
  5. (e)
    1. (1) The deposit of a written will as provided by this section shall not constitute a probate of the will nor, if deposited prior to a testator's death, preclude the testator from revoking it, amending it, withdrawing it, or depositing a substitute will, it being the intent and purpose of this section to provide only a place of depository for written wills, a procedure for depositing written wills, and a delivery of written wills for probate upon the death of the testator.
    2. (2) If, after the death of the testator, a later will is discovered that supersedes a will deposited as provided in this section and the later will is duly admitted to probate, or if a will deposited as provided in this section is for any other reason invalidated, following the administration of the estate of the testator by or on whose behalf the will is deposited, and the settlement of the estate, upon order by the judge of the probate court wherein the will was deposited, the will shall be destroyed.
History (4)
  • Acts 1976, ch. 676, §§ 1-4
  • T.C.A., §§ 32-701 — 37-704
  • Acts 1989, ch. 364, § 2
  • 1999, ch. 507, § 1.
§ 32-1-113. Mailing or delivery of will to personal representative or clerk of court.
  1. (a) Any person or corporation who has possession of or discovers a written instrument purporting to be the last will and testament of a decedent shall mail or deliver that instrument to the personal representative named in the instrument as soon as the person or corporation has knowledge of the death, and a photographic copy of the instrument shall be mailed or delivered to the clerk of the court having probate jurisdiction in the county of the decedent's residence.
  2. (b)
    1. (1) If the personal representative, or the personal representative's address, is not known, is deceased or is not eligible to serve;
    2. (2) If the instrument does not name a personal representative;
    3. (3) If the personal representative declines to serve; or
    4. (4) If it appears that there is no estate that will require administration;
    5. then the person having possession of the original instrument shall mail or deliver it to the clerk.
  3. (c) The receipt by the personal representative or the clerk shall relieve the person of further responsibility as to possession of the instrument.
  4. (d) The clerk of the court shall have no responsibility to perform any acts regarding the probate of the will and shall not accept any claims for filing against the estate unless and until the personal representative or other interested party files proper pleadings to initiate such an action.
History (2)
  • Acts 1985, ch. 139, § 3
  • 1989, ch. 364, § 3.
Part 2 Revocation
§ 32-1-201. Actions effecting a revocation of will.
  1. A will or any part thereof is revoked by:
    1. (1) A subsequent will, other than a nuncupative will, that revokes the prior will or part expressly or by inconsistency;
    2. (2) Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will, that revokes the prior will or part expressly;
    3. (3) Being burned, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking it, by the testator or by another person in the testator's presence and by the testator's direction; or
    4. (4) Both the subsequent marriage and the birth of a child of the testator, but divorce or annulment of the subsequent marriage does not revive a prior will.
Backlinks (1)
History (2)
  • Acts 1985, ch. 139, § 1
  • 1992, ch. 951, § 8.
§ 32-1-202. Revocation by divorce or annulment.
  1. (a) If after executing a will the testator is divorced or the testator's marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.
  2. (b) Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent but § 32-3-105 shall not apply. Other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent.
  3. (c) If provisions are revoked solely by this section, they are revived by the testator's remarriage to the former spouse.
  4. (d) For purposes of this section, divorce or annulment means any divorce or annulment that would exclude the spouse as a surviving spouse within the meaning of § 31-1-102(b). A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
  5. (e) No change of circumstances other than as described in this and § 32-1-201 revokes a will.
History (1)
  • Acts 1985, ch. 139, § 2.
Chapter 2 Probate of Wills
§ 32-2-101. Place of proving and recording will and granting letters testamentary.
  1. Wills shall be proved and recorded and letters testamentary granted in the probate court of the county where the testator had the testator's usual residence at the time of the testator's death, or, in case the testator had fixed places of residence in more than one county, in either or any of those counties.
Backlinks (1)
History (4)
  • Code 1858, § 2169 (deriv. Acts 1789, ch. 23, § 1)
  • Shan., § 3902
  • mod. Code 1932, § 8099
  • T.C.A. (orig. ed.), § 32-201.
§ 32-2-102. Original will — Where kept — Transfer of will — Record of transfer.
  1. (a) Except when a will is before the court awaiting the determination of any controversy, an original will must remain in the clerk's office of the county where the will is proved or exhibited, or other suitable facility as provided in subsection (b), and any person may have access to it, as to other records.
  2. (b)
    1. (1) The clerk may transfer, as provided in subdivision (b)(2), all original wills in the clerk's possession for which at least three (3) years have elapsed since final settlement of the estate or final disposition of all actions involving the will.
    2. (2) A will transferred pursuant to subdivision (b)(1) must be transferred to a county archive facility or any other suitable facility that:
      1. (A) Stores local government records;
      2. (B) Is secure from theft and natural disasters; and
      3. (C) Has been approved by the judge of the respective court and the county public records commission.
  3. (c) For the purposes of subsection (b), “final disposition” means that judgment has been entered and the appeal times have lapsed for all parties.
  4. (d) The clerk of the court shall keep a record of each will that is transferred pursuant to subsection (b). The record must indicate the name of the testator, the date of transfer, and the location to which the will was transferred.
History (5)
  • Code 1858, § 2170 (deriv. Acts 1794, ch. 1, § 49)
  • Shan., § 3903
  • Code 1932, § 8100
  • T.C.A. (orig. ed.), § 32-202
  • Acts 2019, ch. 79, § 3.
§ 32-2-103. Withdrawal of will for proof out of state.
  1. Whenever any will has been proved and recorded for six (6) months in any county of this state, as required by §§ 32-2-101 — 32-2-104, and the will is required to be proved out of this state, the judge of probate may, on the application of the executor, so stating, duly sworn to and filed, allow the executor to withdraw the will, upon leaving a photostatic and certified copy and complying with such other terms as may be prescribed.
Backlinks (1)
History (2)
  • Code 1932, § 8101
  • T.C.A. (orig. ed.), § 32-203.
§ 32-2-104. Proof of will generally.
  1. (a) Written wills with witnesses, when not contested, shall be proved by at least one of the subscribing witnesses, if living. Every last will and testament, written or nuncupative, when contested, shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to support it.
  2. (b) Upon petition of any interested party, the court, in its discretion, may permit the proof of any subscribing witness who is outside of the state or county or who is unable to testify in person, to be taken by interrogatories or deposition in the same manner as provided in chancery cases. For the purpose of taking interrogatories or depositions a photostatic copy of the original will may be furnished to the witness, or in the discretion of the court, the original will may be withdrawn and used in the manner prescribed by § 32-2-103.
Backlinks (1)
History (6)
  • Code 1858, §§ 2171, 2172 (deriv. Acts 1789, ch. 23, § 1)
  • Shan., § 3904
  • Code 1932, § 8102
  • C. Supp. 1950, § 8102
  • Acts 1953, ch. 69, § 1
  • T.C.A. (orig. ed.), § 32-204.
§ 32-2-105. Proof of will of person serving in armed forces.
  1. (a) Any last will of any person in the military or naval service of the United States, made outside this state, or at sea while in military or naval service, may be admitted to probate by the probate court of the county where the testator was domiciled, upon the certificate of the colonel, lieutenant colonel, major, or commanding officer of the regiment, or captain or commandant of the vessel, setting forth that the testator acknowledged, or that the subscribing witnesses proved, the will before that officer; but the heirs or next of kin of the testator may, in like manner and time prescribed for other contests, contest the validity of the will, in which case the authentication shall be prima facie evidence.
  2. (b)
    1. (1) The will of any person serving in the armed forces of the United States or any auxiliary thereto and executed while serving therein, may be admitted to probate upon proof satisfactory to the tribunal having jurisdiction over the probate of the genuineness of the signature of the maker of the will, where it first be shown that proof of due execution of the will may not be had of the subscribing witnesses to the will, if any, due to the inability to locate them, their death or the unavailability of their testimony for any reason adjudged sufficient by the tribunal having jurisdiction over the probate.
    2. (2) However, no such will shall be admitted to probate where the will is offered for probate more than ten (10) years from the date of a declaration by the president of the United States or a resolution of congress declaring the end of hostilities during which the will was executed and in which the testator was a member of the armed forces, and nothing provided in this subsection (b) with reference to such wills shall void modes of probating wills made by members of the armed forces, but this subsection (b) shall, as to the wills of members of the armed forces made as provided in this section, afford an additional method of probate.
History (7)
  • Code 1858, §§ 2191, 2192 (deriv. Acts 1847-1848, ch. 82, § 2)
  • Shan., §§ 3923, 3924
  • mod. Code 1932, §§ 8129, 8130
  • Acts 1945, ch. 24, §§ 1-4
  • mod. C. Supp. 1950, § 8102
  • modified
  • T.C.A. (orig. ed.), §§ 32-205, 32-206.
§ 32-2-106. Proof of nuncupative will.
  1. (a) No nuncupative will shall be proved until fourteen (14) days after the death of the testator, nor until process has issued to call in the surviving spouse or next of kin, or both, if conveniently to be found, to contest it.
  2. (b) If the surviving spouse and next of kin, or any of them, are not so found or are out of the state, notice shall be given by publication, once a week for four (4) successive weeks, in some newspaper published in the county, or, if none is published in the county, in the one published nearest the courthouse of the county, and this notice shall be a prerequisite to the establishment of the will; also, if residence be known, by mailing a copy of the notice to them at that address by registered mail.
History (5)
  • Code 1858, § 2166 (deriv. Acts 1784 (Apr.), ch. 22, § 16)
  • Shan., § 3899
  • mod. Code 1932, §§ 8095, 8096
  • modified
  • T.C.A. (orig. ed.), § 32-207.
§ 32-2-107. Effect of probate.
  1. The probate of wills in the probate courts shall be sufficient evidence of the devise of real estates.
History (4)
  • Code 1858, § 2197 (deriv. Acts 1784 (Oct.), ch. 10, § 6)
  • Shan., § 3929
  • Code 1932, § 8139
  • T.C.A. (orig. ed.), § 32-208.
§ 32-2-108. Copies of wills as evidence.
  1. Attested or certified copies of wills, or the records thereof, by the proper officer, may be given in evidence in the same manner as the originals.
History (4)
  • Code 1858, § 2198 (deriv. Acts 1784 (Oct.), ch. 10, § 6)
  • Shan., § 3930
  • mod. Code 1932, § 8140
  • T.C.A. (orig. ed.), § 32-209.
§ 32-2-109. Original — When to be produced.
  1. (a) When any fraud is suggested to have been committed in the drawing or obtaining of any last will, or any irregularity in the executing or attestation of the will, the party making the suggestion may insist upon the original will being produced to the court, if the original is to be found.
  2. (b) The court, wherever any suit is pending, and in which such a domestic will may be introduced as testimony, may compel all and every person or persons, whether in office or otherwise, to produce the will.
History (4)
  • Code 1858, §§ 2199, 2200 (deriv. Acts 1784 (Oct.), ch. 10, § 6)
  • Shan., §§ 3931, 3932
  • mod. Code 1932, §§ 8141, 8142
  • T.C.A. (orig. ed.), § 32-210.
§ 32-2-110. Affidavit of witnesses to prove will.
  1. 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.
Backlinks (3)
History (2)
  • Acts 1972, ch. 568, § 1
  • T.C.A., § 32-211.
§ 32-2-111. Admission to probate for establishing a muniment of title to real estate and personal property.
  1. Regardless of the date of the person's death and any limitation on the time for admitting a will for probate, any will when duly proven, whether of a resident or nonresident decedent, may be admitted to probate for the limited purpose of establishing a muniment of title to real estate and personal property, without the necessity of granting letters testamentary or otherwise proceeding with administration.
Backlinks (1)
History (3)
  • Acts 1997, ch. 426, § 19
  • 2002, ch. 735, § 7
  • 2007, ch. 8, § 3.
Chapter 3 Construction, Operation and Effect
§ 32-3-101. Operation of will.
  1. A will shall be construed, in reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, and shall convey all the real estate belonging to the testator, or in which the testator had any interest at the testator's decease, unless a contrary intention appear by its words in context.
History (4)
  • Code 1858, § 2195 (deriv. Acts 1851-1852, ch. 180, § 2)
  • Shan., § 3927
  • Code 1932, § 8133
  • T.C.A. (orig. ed.), § 32-301.
§ 32-3-102. Devise of land.
  1. Every devise shall convey the entire estate of the testator in the lands, unless the contrary intent plainly appear from the words and context of the will.
History (4)
  • Code 1858, § 2164 (deriv. Acts 1784 (Apr.), ch. 22, § 12)
  • Shan., § 3897
  • Code 1932, § 8091
  • T.C.A. (orig. ed.), § 32-302.
§ 32-3-103. Pretermitted child.
  1. (a) A child born after the making of a will, either before or after the death of the testator, inclusive of a mother-testator, not provided for nor disinherited, but only pretermitted, in the will, and not provided for by settlement made by the testator in the testator's lifetime, shall succeed to the same portion of the testator's estate as if the testator had died intestate.
  2. (b) Toward raising the portion of such child, the devisees and legatees and other heirs shall contribute out of the parts devised, or bequeathed to, or settled upon them by the testator, in the proportion borne by their respective devises, legacies, or settlements to the whole estate of the testator.
History (4)
  • Code 1858, §§ 2193, 2194 (deriv. Acts 1823, ch. 28, § 1)
  • Shan., §§ 3925, 3926
  • Code 1932, §§ 8131, 8132
  • T.C.A. (orig. ed.), §§ 32-303, 32-304.
§ 32-3-104. Death of class member before time of enjoyment.
  1. Where a bequest, devise, conveyance, transfer or gift is made to a class of persons subject to fluctuation by increase or diminution of its number in consequence of future births or deaths, and the time of payment, distribution, vestiture or enjoyment is fixed at a subsequent period or on the happening of a future event, and any member of the class dies before the arrival of that period or the happening of that event, and has issue surviving when the period arrives or the event happens, that issue shall take the share of the property that the member so dying would take if living, unless a clear intention to the contrary is manifested by the will, deed or other instrument.
History (3)
  • Acts 1927, ch. 13, § 1
  • mod. Code 1932, §§ 7598, 8092
  • T.C.A. (orig. ed.), § 32-305.
§ 32-3-105. Death of devisee or legatee before death of testator.
  1. (a) Whenever the devisee or legatee or any member of a class to which an immediate devise or bequest is made, dies before the testator, or is dead at the making of the will, leaving issue that survives the testator, the issue shall take the estate or interest devised or bequeathed that the devisee or legatee or the member of the class, as the case may be, would have taken, had that person survived the testator, unless a different disposition thereof is made or required by the will.
  2. (b) Subsection (a) shall apply also to a revocable (living) trust that became irrevocable upon the death of its settlor or grantor. The surviving issue of a beneficiary who predeceased a settlor or grantor shall take the trust interest the beneficiary would have received had the beneficiary survived the settlor or grantor, unless the trust agreement provides otherwise.
Backlinks (2)
History (8)
  • Code 1858, § 2196 (deriv. Acts 1851-1852, ch. 180, § 3)
  • Shan., § 3928
  • Code 1932, § 8134
  • Acts 1941, ch. 61, § 1
  • C. Supp. 1950, § 8134
  • T.C.A. (orig. ed.), § 32-306
  • Acts 1989, ch. 364, § 4
  • 1997, ch. 426, § 20.
§ 32-3-106. Testamentary additions to trusts.
  1. (a)
    1. (1) A devise or bequest, the validity of which is determinable by the law of this state, may be made by a will to the trustee or trustees of a trust established or to be established by the testator or by the testator and some other person or persons or by some other person or persons (including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts) if the trust is identified in the testator's will and its terms are set forth in a written instrument (other than a will) executed before or concurrently with the execution of the testator's will or in the valid last will of a person who has predeceased the testator (regardless of the existence, size or character of the corpus of the trust).
    2. (2) The devise or bequest shall not be invalid because the trust is amendable or revocable, or both, or because the trust was amended after the execution of the will or after the death of the testator.
    3. (3) Unless the testator's will provides otherwise, the property so devised or bequeathed:
      1. (A) Shall not be deemed to be held under a testamentary trust of the testator but shall become a part of the trust to which it is given; and
      2. (B) Shall be administered and disposed of in accordance with the instrument or will setting forth the terms of the trust, including any amendments thereto made before the death of the testator (regardless of whether made before or after the execution of the testator's will) and, if the testator's will so provides, including any amendments to the trust made after the death of the testator.
    4. (4) A revocation or termination of the trust before the death of the testator shall cause the devise or bequest to lapse.
  2. (b) This section shall have no effect upon any devise or bequest made by a will executed prior to March 17, 1961.
  3. (c) This section shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
  4. (d) This section shall be known and may be cited as the “Uniform Testamentary Additions to Trusts Act.”
History (2)
  • Acts 1961, ch. 303, §§ 1-4
  • T.C.A., § 32-307.
§ 32-3-107. Contracts to make or revoke wills.
  1. (a) A contract to make a will or devise, or not to revoke a will or devise, or to die intestate can be established only by:
    1. (1) Provisions of a will stating material provisions of the contract;
    2. (2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
    3. (3) A writing signed by the decedent evidencing the contract.
  2. (b) The execution of a joint will or mutual wills does not create a presumption of a contract to make a will, or to refrain from revoking a will.
History (3)
  • Acts 1977, ch. 88, §§ 1, 2
  • 1978, ch. 745, § 1
  • T.C.A., § 32-308.
§ 32-3-108. Marital deduction.
  1. (a)
    1. (1) IF,
      1. (A) A decedent dies after December 31, 1981;
      2. (B) Leaving a will executed, or a trust created, before September 12, 1981, that contains a formula expressly providing that the spouse is to receive the maximum amount of property qualifying for the marital deduction allowable by federal law;
      3. (C) The formula referred to in subdivision (a)(1)(B) was not amended to refer specifically to an unlimited marital deduction under federal law at any time after September 12, 1981, and before the death of the decedent;
      4. (D) The will or trust also contains a bequest to, or in trust for the benefit of, the decedent's spouse that qualifies as qualified terminable interest property pursuant to § 2056(b)(7) of the Internal Revenue Code (26 U.S.C. §  2056(b)(7));
    2. (2) THEN, the formula referred to in subdivision (a)(1)(B) shall be construed to refer to the unlimited marital deduction allowable by federal law as amended by subsection (a) of § 403 of the Economic Recovery Tax Act of 1981; provided, that the formula shall not be effective as to, or be deemed to, convey and transfer to the decedent's spouse, a sum in excess of the greater of:
      1. (A) Two hundred fifty thousand dollars ($250,000); or
      2. (B) Fifty percent (50%) of the value of the adjusted gross estate of the decedent as defined in § 2056(c)(2) of the Internal Revenue Code (26 U.S.C. §  2056(c)(2)) prior to its amendment by the Economic Recovery Tax Act of 1981;
    3. so that such qualified terminable interest property, as well as the property passing to the spouse pursuant to the formula clause, will qualify for the unlimited marital deduction under § 2056 of the Internal Revenue Code (26 U.S.C. §  2056(b)(7)), but the amount of property passing to the spouse under the formula clause shall not be increased or decreased from what would have passed thereunder prior to the enactment of the Economic Recovery Tax Act of 1981;
    4. (3) Notwithstanding subdivision (a)(1)(D), the formula referred to in subdivision (a)(1)(B) will be effective as to or deemed to convey and transfer to the decedent's spouse an unlimited sum, if the court having jurisdiction over decedent's probate estate determines in a proceeding in which all beneficiaries of the estate are represented, that based on all the facts and circumstances the decedent intended or would have intended that the formula should be applied so as to take advantage of the unlimited marital deduction allowed by federal law as amended by subsection (a) of § 403 of the Economic Recovery Tax Act of 1981. This subdivision (a)(3) shall apply only for decedents whose deaths occur after September 12, 1981, and prior to October 1, 1983, and, therefore, shall in no way affect the computation of the amount deductible for Tennessee inheritance tax purposes pursuant to § 67-8-315(a)(6).
  2. (b) For a decedent dying before January 1, 2016, this section shall in no way affect the computation of the amount deductible for Tennessee inheritance tax purposes pursuant to § 67-8-315(a)(6) prior to October 1, 1983.
History (4)
  • Acts 1983, ch. 26, § 1
  • T.C.A., § 32-309
  • Acts 1987, ch. 322, § 22
  • 2017, ch. 290, § 10.
§ 32-3-109. Trials for construction or interpretation of wills — Jurisdiction of courts.
  1. Any court of record having probate jurisdiction has concurrent jurisdiction with chancery courts for the construction or interpretation of wills, or parts thereof, and for establishing lost, spoliated or suppressed wills.
History (1)
  • Acts 1991, ch. 152, § 3.
§ 32-3-110. Power of appointment.
  1. (a) This section applies only to powers of appointment exercisable by will.
  2. (b) Capacity of holder of power. A power of appointment by will that is not subject to an express condition that it may be exercised only by a holder of a greater age may be exercised by a holder who has attained the age of eighteen (18) years.
  3. (c) Manner of exercise of power. Unless a contrary intent is evidenced by the terms of the instrument creating or limiting a power of appointment, a donee of a power of appointment exercisable by will may:
    1. (1) Make appointments of present or future interests or both;
    2. (2) Make appointments with conditions and limitations;
    3. (3) Make appointments with restraints on alienation upon the appointed interests;
    4. (4) Make appointments of interests to a trustee for the benefit of one (1) or more objects of the power;
    5. (5) Make appointments that create in the object of the power additional powers of appointment to permissible objects of the power of appointment pursuant to which the powers are created; and
    6. (6) If the donee could appoint outright to the object of a power, make appointments that create in the object of the power additional powers of appointment that may be exercisable in favor of such persons or entities as the person creating the power may direct, even though the objects of the additional powers of appointment may not have been permissible objects of the original power of appointment pursuant to which the additional powers are created; provided, however, that the donee may not create a power that would violate any applicable rule against perpetuities.
  4. (d) Disposition of trust property subject to power. In disposing of trust property subject to a power of appointment exercisable by will, a trustee acting in good faith shall have no liability to any appointee or take in default of appointment for relying upon a will believed to be the will of the donee of the power of appointment, for assuming that there is no will in the absence of actual knowledge thereof within three (3) months after the death of the donee, or for requiring that any will purporting to exercise a power of appointment be admitted to probate. The trustee's action in accordance with the preceding sentence shall not affect the rights of any appointee or taker in default of appointment to recover the distributed property from any person to whom the trustee has made distribution.
  5. (e) Applicability. This section shall be construed as being declarative of existing law and shall apply to all instruments granting general and special powers of appointment and all wills exercising those powers, whether existing or exercised before, on, or after May 8, 2002, except that no trustee shall be liable to any person in whose favor a power of appointment may have been exercised for any distribution of property made to persons entitled to take in default of the effective exercise of the power of appointment to the extent that the distribution has been completed prior to May 8, 2002.
History (1)
  • Acts 2002, ch. 735, § 8.
§ 32-3-111. Specifically devised or bequeathed property.
  1. (a) A specific legatee or devisee has a right to the specifically gifted or devised property in the testator's estate at death or if the property has been disposed of and a contrary intention is not manifest during the testator's lifetime:
    1. (1) Any balance of the purchase price, together with any security interest, owing from a purchaser to the testator at death by reason of sale of the property;
    2. (2) Any amount of a condemnation award for the taking of the property unpaid at death;
    3. (3) Any proceeds unpaid at death on fire or casualty insurance on, or other recovery for injury to, the property; and
    4. (4) Property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation.
  2. (b) If specifically devised or bequeathed property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award, insurance proceeds, or recovery for injury to the property are paid to a conservator or to an agent acting with the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
  3. (c) The right of a specific legatee or devisee under subsection (b) is reduced by any right the legatee or devisee has under subsection (a).
  4. (d) For the purposes of the references in subsection (b) to a conservator, subsection (b) does not apply if after the sale, mortgage, condemnation, casualty, or recovery, it was adjudicated that the testator's incapacity ceased and the testator survived the adjudication by one (1) year.
  5. (e) For the purposes of the references in subsection (b) to an agent acting within the authority of a durable power of attorney for an incapacitated principal:
    1. (1) “Incapacitated principal” means a principal who is an incapacitated person;
    2. (2) No adjudication of the principal's incapacity need occur before death; and
    3. (3) The acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal, the presumption rebuttable by clear and convincing evidence of capacity.
History (1)
  • Acts 2004, ch. 866, § 3.
§ 32-3-112. Disposition of residue.
  1. If the residue of the decedent's testamentary estate or the residue of a revocable trust created by the decedent that becomes irrevocable at the settlor's death is devised to two (2) or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to the other residuary devisees, in proportion to the interest of each in the remaining part of the residue, unless the decedent's will or trust agreement or § 32-3-105 provides for a different disposition.
History (2)
  • Acts 2007, ch. 8, § 2
  • 2012, ch. 886, § 8.
§ 32-3-113. Application of federal estate tax or generation-skipping transfer tax law for certain decedents.
  1. (a)
    1. (1) A will or trust of a decedent, who dies after December 31, 2009, but before January 1, 2011, that contains a formula referring to the “unified credit,” “estate tax exemption,” “applicable exemption amount,” “applicable credit amount,” “applicable exclusion amount,” “generation-skipping transfer tax exemption,” “GST exemption,” “marital deduction,” “maximum marital deduction,” or “unlimited marital deduction,” or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate and generation-skipping transfer tax laws as they applied with respect to estates of decedents dying on December 31, 2009.
    2. (2) Subdivision (a)(1) shall not apply with respect to:
      1. (A) A will or trust that is executed or amended after December 31, 2009, or manifests an intent that a contrary rule shall apply if the decedent dies on a date on which there is no then-applicable federal estate or generation-skipping transfer tax;
      2. (B) A will, if the personal representative files with the clerk of the court in which the will is being administered, within nine (9) months of the decedent's death, a written election to opt out of the application of the general rule of construction set forth in this subsection (a), together with the written consent to such election of each beneficiary who would have received a different amount of property under the will absent this election; or
      3. (C) A trust, if the personal representative, within nine (9) months of the decedent's death, elects to opt out of the application of the general rule of construction set forth in this subsection (a) by delivery of written notice to the qualified beneficiaries of the trust; provided, that the personal representative first obtains written consent to such election from each qualified beneficiary of the trust who would have received a different amount of property under the trust absent such election.
    3. (3) If a beneficiary from whom the personal representative of a will is required to obtain approval pursuant to subdivision (a)(2)(B) or (a)(2)(C) is a trust, then the approval shall be obtained from each qualified beneficiary of such trust.
    4. (4) For the purpose of this subsection (a), the term “qualified beneficiary” shall have the same meaning as defined in § 35-15-103.
    5. (5) For the purpose of obtaining a beneficiary's or qualified beneficiary's consent, §§ 35-15-301 — 35-15-305 shall apply.
    6. (6) If there is no personal representative, then the trustee of the trust may make the election for the trust in the manner permitted for a personal representative under this subsection (a).
    7. (7) An election by the personal representative or trustee under this subsection (a) shall relate back to the date of the decedent's death for all purposes, including the application of title 67, chapter 8.
    8. (8) The reference to January 1, 2011, in this subsection (a) shall, if the federal estate and generation-skipping transfer tax becomes effective before that date, refer instead to the first date on which such tax shall become legally effective.
  2. (b) The personal representative, or any affected beneficiary under the will or other instrument, may bring a proceeding to determine whether the decedent intended that the references under subsection (a) be construed with respect to the law as it existed after December 31, 2009. Such a proceeding must be commenced within twelve (12) months following the death of the testator or grantor, and not thereafter.
History (1)
  • Acts 2010, ch. 638, § 1.
§ 32-3-114. Modification of will to achieve testator's objectives.
  1. To achieve the testator's tax objectives, the court may modify the terms of a will in a manner that is not contrary to the testator's probable intention. The court may provide that the modification has retroactive effect.
History (1)
  • Acts 2010, ch. 657, § 1.
§ 32-3-115. Written statement or list to dispose of items of tangible personal property.
  1. (a)
    1. (1) Notwithstanding the requirements of a holographic will, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities, and property used in a trade or business.
    2. (2) To be admissible under this section as evidence of the intended disposition, the writing:
      1. (A) Must:
        1. (i) Be either in the handwriting of the testator or signed by the testator;
        2. (ii) Be dated; and
        3. (iii) Describe the items and the devisees with reasonable certainty;
      2. (B) May be prepared before or after the execution of the will;
      3. (C) May be altered by the testator after its preparation, provided that the testator signs and dates the alteration; and
      4. (D) May be a writing that has no significance apart from its effect upon the dispositions made by the will.
    3. (3) If more than one (1) otherwise effective writings exist or a single writing contains properly signed and dated alterations, the provisions of the most recent writing or alteration revoke any inconsistent provisions of all prior writing.
  2. (b) A personal representative is not liable for any distribution of tangible personal property to the apparent devisee under the testator's will without actual knowledge of the written statement or list, as described in subsection (a), and the personal representative has no duty to recover property distributed without knowledge of the written statement or list.
  3. (c) If the writing is admitted to the probate proceeding as permitted in subsection (a), the recipient or recipients of items distributed in accordance with the written list or statement shall file a receipt for the item or items received in accordance with § 30-2-707.
History (1)
  • Acts 2017, ch. 290, § 11.
Chapter 4 Contest
§ 32-4-101. Certificate that will is contested — Contestant's bond.
  1. (a) If the validity of any last will or testament, written or nuncupative, is contested, then the court having probate jurisdiction over that last will or testament must enter an order sustaining or denying the contestant's right to contest the will. If the right to contest the will is sustained, then the court must:
    1. (1) Require the contestant to enter into bond, with surety, in the penal sum of five hundred dollars ($500), payable to the executor mentioned in the will, conditioned for the faithful prosecution of the suit, and in case of failure in the suit, to pay all costs that may accrue on the suit; and
    2. (2) Cause a certificate of the contest and the original will to be filed with the appropriate court for trial.
      Backlinks (2)
  2. (b) As used in this section, the term “the appropriate court for trial” means the court elected by the contestant, in the notice of contest, to conduct a trial upon the validity of the will.
History (7)
  • Code 1858, § 2173 (deriv. Acts 1835-1836, ch. 5, § 9
  • 1835-1836, ch. 18, § 2)
  • Shan., § 3905
  • Code 1932, § 8103
  • Acts 1980, ch. 765, § 1
  • T.C.A. (orig. ed.), § 32-401
  • Acts 2002, ch. 631, § 1.
§ 32-4-102. Bond of legatee or devisee.
  1. (a) If the legatees or devisees, or any of them, are adults, and have notice that the probate of the will is contested, the court shall require them to enter into bond, with surety, in the penal sum of five hundred dollars ($500), conditioned for the faithful prosecution of the suit, and, in case of failure in the suit, to pay all costs that may accrue on the suit, but an adult legatee or devisee who makes known in writing, to be entered of record, to the court that the adult legatee or devisee claims nothing under the will, and is willing that it be set aside, shall not be required to enter into bond.
  2. (b) If all the legatees or devisees are adults, and refuse or fail to enter into a bond, the will shall not be admitted to probate, but shall be held for naught, and the property of the supposed testator shall be distributed as the property of an intestate.
History (4)
  • Code 1858, §§ 2174, 2175 (deriv. Acts 1851-1852, ch. 77, § 1)
  • Shan., §§ 3906, 3907
  • Code 1932, §§ 8104, 8105
  • T.C.A. (orig. ed.), §§ 32-402, 32-403.
§ 32-4-103. Contest in forma pauperis.
  1. Persons may be permitted to have an issue made upon any will, either as plaintiffs or defendants, in the form prescribed for paupers.
History (4)
  • Code 1858, § 2176 (deriv. Acts 1851-1852, ch. 77, § 3)
  • Shan., § 3908
  • Code 1932, § 8106
  • T.C.A. (orig. ed.), § 32-404.
§ 32-4-104. Issues — When and how made up — When triable.
  1. After the filing of the certificate of the contest and the original will, in the office of the clerk of the appropriate court for trial, pursuant to § 32-4-101(a)(2), an issue or issues shall be made up, under the direction of the court, to try the validity of the will.
History (6)
  • Code 1858, § 2177 (deriv. Acts 1835-1836, ch. 5, § 9)
  • Shan., § 3909
  • Acts 1925, ch. 8, § 1
  • Code 1932, § 8107
  • T.C.A. (orig. ed.), § 32-405
  • Acts 2002, ch. 631, § 2.
§ 32-4-105. Proof of will — Presumption of suspicious circumstances.
  1. (a) Upon the trial of the issue in case of a written will with witnesses, it shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to support it.
  2. (b) Upon the contest of a holographic will, if the holographic will was written within thirty (30) days prior to a testator's death and the testator died by suicide, then there is a presumption of suspicious circumstances and the proponent of the will has the burden of presenting evidence demonstrating that the testator had the capacity to execute the will.
History (5)
  • Code 1858, § 2178 (deriv. Acts 1789, ch. 23, § 1)
  • Shan., § 3910
  • Code 1932, § 8108
  • T.C.A. (orig. ed.), § 32-406
  • 2022, ch. 942, § 1.
§ 32-4-106. Original will lost.
  1. If the original will is lost or mislaid so that it cannot be produced on the trial of the issue, but the paper has been copied into the pleadings, or spread upon the minutes of the court, the court may proceed with the trial of the issue in the same manner as if the original were in existence and before it.
History (4)
  • Code 1858, § 2179 (deriv. Acts 1851-1852, ch. 77, § 2)
  • Shan., § 3911
  • Code 1932, § 8109
  • T.C.A. (orig. ed.), § 32-407.
§ 32-4-107. Trial by jury — Certification to probate court.
  1. (a) The issue may be tried by a jury, and their verdict, and the judgment of the court upon the validity of the will shall be certified to the court having probate jurisdiction over the will to be recorded together with the original will, if established.
  2. (b) If the issue was tried upon a copy of the original will, the copy shall be sent to the court to be recorded, and the certificate, copy, verdict, and judgment shall have the same effect as if the original paper writing were in existence and so certified to the court having probate jurisdiction over the will.
History (8)
  • Code 1858, §§ 2180, 2181 (deriv. Acts 1789, ch. 23, § 1
  • 1835-1836, ch. 5, § 9
  • 1851-1852, ch. 77, § 2)
  • Shan., §§ 3912, 3913
  • Code 1932, §§ 8110, 8111
  • Acts 1980, ch. 765, §§ 2, 3
  • T.C.A. (orig. ed.), §§ 32-408, 32-409
  • Acts 1992, ch. 951, § 9.
§ 32-4-108. Statute of limitations.
  1. All actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues, the rights conferred by § 28-1-106.
History (7)
  • Acts 1927, ch. 3, § 1
  • Code 1932, § 8112
  • impl. am. Acts 1971, ch. 162, § 2
  • T.C.A. (orig. ed.), § 32-410
  • Acts 1985, ch. 228, §§ 1, 2
  • 1987, ch. 322, § 15
  • 2011, ch. 47, § 24.
§ 32-4-109. Trials upon validity of wills — Jurisdiction of courts.
  1. Any court of record that has probate jurisdiction, whether a chancery court or other court of record established by private or public act, has concurrent jurisdiction with the circuit court to conduct a trial upon the validity of a will, in the manner and to the extent prescribed in this chapter. Notwithstanding law to the contrary, prior to certification of the fact of the contest pursuant to § 32-4-101(a)(2), the contestant shall elect, in the notice of contest, either the circuit court or the chancery court, or other court of record having such concurrent jurisdiction, to conduct a trial upon the validity of the will.
History (2)
  • Acts 1991, ch. 152, § 2
  • 2002, ch. 631, § 3.
Chapter 5 Administration Upon Foreign Wills
§ 32-5-101. Recording will.
  1. A will, duly proved, allowed and admitted to probate outside of this state, may be allowed and recorded in the proper court of any county in this state, in which the testator has left any estate.
History (4)
  • Acts 1919, ch. 77, § 1
  • Shan. Supp., § 3924a11
  • Code 1932, § 8113
  • T.C.A. (orig. ed.), § 32-501.
§ 32-5-102. Executors of other states qualifying — Bond.
  1. When there are goods and chattels in this state to be administered under a will of another state, district or territory, the executors, or some one of them, may qualify as executors, and they shall give bond, with surety, as required in cases where the will was made within the limits of this state, and they shall be subject to be proceeded against as in other cases.
History (4)
  • Code 1858, § 2189 (deriv. Acts 1823, ch. 31, § 3)
  • Shan., § 3921
  • Code 1932, § 8122
  • T.C.A. (orig. ed.), § 32-510.
§ 32-5-103. Petition for probate — Hearing — Notice.
  1. When a copy of a will of another state, district, or territory and the probate of the will, duly authenticated, is presented by the executor or by any other person interested in the will, with a petition for probate of the will, the will must be filed and probate may be had either in common or in solemn form, and if the latter, then a time must be appointed for a hearing and notice must be given as is required by law on a petition for the original probate of a domestic will in solemn form; provided, however, that a contest of a will of another state, district, or territory upon the issue devisavit vel non shall be allowed as to a devise of realty lying in this state, but as to devises of personalty, the foreign probate of such will shall be conclusive.
History (7)
  • Acts 1919, ch. 77, § 2
  • Shan. Supp., § 3924a12
  • Code 1932, § 8114
  • Acts 1941, ch. 63, § 1
  • C. Supp. 1950, § 8114
  • Acts 1959, ch. 112, § 1
  • T.C.A. (orig. ed.), § 32-502.
§ 32-5-104. Admitting will to probate.
  1. If upon the hearing, it appears to the satisfaction of the court that the will has been duly proved, allowed and admitted to probate outside of the state, and that it was executed according to the law of the place in which the will was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, which probate shall have the same force and effect as the original probate of a domestic will.
History (4)
  • Acts 1919, ch. 77, § 3
  • Shan. Supp., § 3924a13
  • Code 1932, § 8115
  • T.C.A. (orig. ed.), § 32-503.
§ 32-5-105. Unprobated will from state or country not requiring probate.
  1. (a) When a duly authenticated copy of a will from any state or country, where probate is not required by the laws of that state or country, with a duly authenticated certificate of the legal custodian of the original will that the copy is a true copy, and that the will has become operative by the laws of that state or country, and when a copy of a notarial will in possession of a notary in a foreign state or country entitled to the custody of the will, the laws of which state or country require that the will remain in the custody of the notary, duly authenticated by the notary, is presented by the executor or other persons interested to the proper court in this state, that court shall appoint a time and place of hearing and notice of the hearing shall be given as in case of an original will presented for probate.
  2. (b) If it appears to the court that the instrument ought to be allowed in this state, as the last will and testament of the deceased, the copy shall be filed and recorded, and the will shall have the same effect as if originally proved and allowed in the court.
History (4)
  • Acts 1919, ch. 77, § 4
  • Shan. Supp., §§ 3924a14, 3924a15
  • Code 1932, §§ 8116, 8117
  • T.C.A. (orig. ed.), §§ 32-504, 32-505.
§ 32-5-106. Contest.
  1. Any person interested to contest the validity of a will of another country, state, district, or territory as to realty may do so in the same manner and time limit as though it had been originally presented for probate in that court.
History (4)
  • Code 1858, § 2190 (deriv. Acts 1823, ch. 31, § 3)
  • Shan., § 3922
  • mod. Code 1932, § 8118
  • T.C.A. (orig. ed.), § 32-506.
§ 32-5-107. Authentication.
  1. Any copy of a will from another state, District of Columbia or territory shall be authenticated in the manner prescribed by 28 U.S.C. §§ 1738 and 1739.
History (6)
  • Code 1858, § 2186 (deriv. Acts 1843-1844, ch. 187, § 1)
  • Shan., § 3918
  • mod. Code 1932, § 8119
  • modified
  • impl. am. Acts 1972, ch. 565, § 1
  • T.C.A. (orig. ed.), § 32-507.
§ 32-5-108. Copy of will as evidence.
  1. A copy of a will from another state, District of Columbia or territory, as recorded, certified by the clerk of the court in this state where copy is recorded, shall be evidence.
History (5)
  • Code 1858, § 2188 (deriv. Acts 1823, ch. 31, § 2
  • 1843-1844, ch. 187, § 1)
  • Shan., § 3920
  • mod. Code 1932, § 8120
  • T.C.A. (orig. ed.), § 32-508.
§ 32-5-109. Registration of will as muniment of title.
  1. A copy of a will, foreign or domestic, certified by the clerk, may be registered in the county where the land lies as a muniment of title, and a copy from the books of the register, duly certified by the register, shall be evidence.
History (4)
  • Code 1858, § 2183 (deriv. Acts 1823, ch. 31, § 2)
  • Shan., § 3915
  • mod. Code 1932, § 8121
  • T.C.A. (orig. ed.), § 32-509.
§ 32-5-110. Foreign unprobated wills.
  1. (a) Where a foreign will has not been probated in another jurisdiction, any person interested may apply for its probate before the probate court of the county in this state in which the real estate or any part of the real estate is located.
  2. (b) To that end the interested person shall present a petition to the probate court, setting forth the death of the foreign testator, the decedent's ownership of lands in the county, and the fact of the decedent's testacy, whereupon the court shall authorize the taking of such proof as may be necessary to prove the will in accordance with the laws of this state.
  3. (c)
    1. (1) Depositions may be taken either upon interrogatories filed in the court for ten (10) days, or by oral examination at a time and place designated by the court.
    2. (2) No notice shall be required of the taking of the depositions, save any resulting from the making of the order for the depositions by the court.
    3. (3) When the depositions are taken by oral examination, the time that elapses between the making of the order for the depositions and the taking of the depositions shall not be less than the time prescribed for notice for taking depositions under the general laws.
  4. (d) Should it not be possible to exhibit to the depositions and produce before the probate court the original will, a copy of the will may be so used, the necessary witnesses proving that it is a true copy of the original.
  5. (e) On being admitted to probate, the probate shall have the same force and effect as to real estate as the probate in this state of wills of residents of this state have as to lands devised by them, but nothing in this section is to prevent the proving of foreign wills as at common law and without probate.
  6. (f) The will shall, as to real estate, be to the same extent and in the same manner as domestic wills subject to contest in the state, and certified copies of the record in the probate court shall be available as evidence as are copies of domestic wills and probate of domestic wills; provided, however, that nothing in this section shall apply to wills dated more than fifty-five (55) years prior to the enactment of this Code.
History (4)
  • Acts 1909, ch. 87, §§ 3, 4
  • Shan., §§ 3924a5-3924a10
  • mod. Code 1932, §§ 8123 — 8128
  • T.C.A. (orig. ed.), §§ 32-511 — 32-516.
Chapter 11 Living Wills
§ 32-11-101. Short title.
  1. This chapter shall be known and may be cited as the “Tennessee Right to Natural Death Act.”
History (1)
  • Acts 1985, ch. 355, § 1.
§ 32-11-102. Legislative intent.
  1. (a) The general assembly declares it to be the law of the state that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person's own medical care, specifically including palliative care and the use of extraordinary procedures and treatment. The general assembly further declares that it is in the public interest to facilitate recovery of organs and/or tissues for transplantation and to provide mechanisms for individuals to express their desire to donate their organs and/or tissues.
  2. (b) The general assembly does further empower the exercise of this right by written declaration, called a “living will,” as provided in this chapter.
History (2)
  • Acts 1985, ch. 355, § 2
  • 1991, ch. 344, § 5.
§ 32-11-103. Chapter definitions.
  1. As used in this chapter, unless the context otherwise requires:
    1. (1) “Competent person” means an individual who is able to understand and appreciate the nature and consequences of a decision to accept or refuse treatment;
    2. (2) “Declarant” means an individual who declares a living will under this chapter;
    3. (3) “Health care provider,” “health care facility” or “health facility” means a person, facility or institution licensed or authorized to provide health or medical care;
    4. (4) “Living will” means a written declaration, pursuant to this chapter, stating declarant's desires for medical care or noncare, including palliative care, and other related matters such as organ donation and body disposal;
    5. (5) “Medical care” includes any procedure or treatment rendered by a physician or health care provider designed to diagnose, assess or treat a disease, illness or injury. These include, but are not limited to: surgery; drugs; transfusions; mechanical ventilation; dialysis; cardiopulmonary resuscitation; artificial or forced feeding of nourishment, hydration or other basic nutrients, regardless of the method used; radiation therapy; or any other medical act designed for diagnosis, assessment or treatment or to sustain, restore or supplant vital body function. This part shall not be interpreted to allow the withholding or withdrawal of simple nourishment or fluids so as to condone death by starvation or dehydration unless the instrument that creates a living will or durable power of attorney for health care includes the following or substantially the following: “I authorize the withholding or withdrawal of artificially provided food, water or other nourishment or fluids”;
    6. (6) “Organ donation” means a procedure to recover vascular organs following a declaration of death pursuant to § 68-3-501(b)(2), but prior to removal from artificial support systems;
    7. (7) “Palliative care” includes any measure taken by a physician or health care provider designed primarily to maintain the patient's comfort. These also include, but are not limited to, sedatives and pain-killing drugs, nonartificial oral feeding, suction, hydration and hygienic care;
    8. (8) “Physician” means any person licensed or permitted to practice medical care under title 63, chapters 6 and 9;
    9. (9) “Terminal condition” means any disease, illness, injury or condition, including, but not limited to, a coma or persistent vegetative state, sustained by any human being, from which there is no reasonable medical expectation of recovery and that, as a medical probability, will result in the death of the human being, regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life, or the life processes; and
    10. (10) “Tissue donation” means a procedure to recover tissue following a declaration of death pursuant to § 68-3-501(b)(1), and following removal from artificial support systems.
Backlinks (4)
History (4)
  • Acts 1985, ch. 355, § 3
  • 1991, ch. 167, § 1
  • 1991, ch. 344, §§ 1-4
  • 1992, ch. 951, § 10.
§ 32-11-104. Execution of declaration.
  1. (a) Any competent adult person may execute a declaration directing the withholding or withdrawal of medical care to the person, to become effective on loss of competency. The declaration must be in writing and signed by the principal. The declaration is valid if the principal's signature is either attested by a notary public with no witnesses or witnessed by two (2) witnesses without attestation by a notary public. A witness is a competent adult, who is not the agent, and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the declaration or by operation of law then existing. The declaration shall contain an attestation clause that attests to the witnesses' compliance with the requirements of this subsection (a). The declaration shall be substantially in the form established in § 32-11-105. It is the intent of the general assembly that this subsection (a) have retroactive application.
  2. (b) It is the responsibility of the declarant or someone acting on the declarant's behalf to deliver a copy of the living will or declaration to the attending physician and/or other concerned health care provider. An attending physician who is so notified shall make the declaration, or a copy of it, part of the declarant's medical record.
Backlinks (1)
History (2)
  • Acts 1985, ch. 355, § 4
  • 2007, ch. 8, § 4.
§ 32-11-105. Form of declaration.
  1. The declaration may be substantially in the following form, but not to the exclusion of other written and clear expressions of intent to accept, refuse, or withdraw medical care:
Backlinks (1)
History (2)
  • Acts 1985, ch. 355, § 5
  • 1991, ch. 344, § 6.
§ 32-11-106. Revocation of declaration.
  1. A declaration may be revoked at any time by the declarant, without regard to the declarant's mental state or competency, by any of the following methods, effectively communicated by the declarant to the attending physician or other concerned health care provider:
    1. (1) Written revocation by the declarant, dated and signed by the declarant;
    2. (2) By oral statement or revocation made by the declarant to the attending physician. This revocation shall be made a part of the declarant's medical record by the attending physician.
History (2)
  • Acts 1985, ch. 355, § 6
  • 1991, ch. 344, § 13.
§ 32-11-107. Effective date of declaration — Subsequent declarations — Incapacitated declarants.
  1. A declaration shall be effective from the date of its execution until revoked in a manner prescribed by this chapter. Nothing in this chapter shall be construed to prevent a declarant from reexecuting a declaration at any time in accordance with the formalities of this chapter, including reexecution after a diagnosis of a terminal condition. If the declarant has executed more than one (1) declaration, then the latest declaration known to the attending physician shall take precedence. If the declarant becomes comatose or if the declarant's condition renders the declarant incapable of communicating with the attending physician, the declaration shall remain in effect during the comatose condition or until the declarant's condition renders the declarant able to communicate with the attending physician.
History (1)
  • Acts 1985, ch. 355, § 7.
§ 32-11-108. Compliance with declaration — Failure to comply — Liability and penalties.
  1. (a) Any physician or other individual health care provider who cannot in good conscience comply with the provisions of such a living will, on being informed of the declaration, shall so inform the declarant, or if the declarant is not competent, the declarant's next of kin or a legal guardian, and at their option make every reasonable effort to assist in the transfer of the patient to another physician who will comply with the declaration. Any health care provider who fails to make good faith reasonable efforts to comply with the preceding procedure as prescribed by the attending physician shall be civilly liable and subject to professional disciplinary action, including revocation or suspension of license. The health care provider shall not be subject to civil liability for medical care provided during the interim period until transfer is effectuated.
  2. (b) A physician or other health care provider who, by no fault of such physician as health care provider, has not received notice of a declaration, revocation, or other change shall not suffer civil, administrative, or criminal penalties under this chapter.
History (1)
  • Acts 1985, ch. 355, § 8.
§ 32-11-109. Willful misconduct — Penalty.
  1. Any person who willfully conceals, cancels, defaces, obliterates or damages the declaration or revocation of another without the declarant's consent, or who falsifies or forges the declaration or revocation of another shall be civilly liable and subject to criminal prosecution for a Class C misdemeanor, and if a provider, subject to administrative and professional discipline.
History (2)
  • Acts 1985, ch. 355, § 9
  • 1989, ch. 591, § 113.
§ 32-11-110. Construction and effect of chapter — Signatures — Severability — Liability for complying with chapter.
  1. (a) The withholding or withdrawal of medical care from a declarant in accordance with this chapter shall not, for any purpose, constitute a suicide, euthanasia or homicide.
    Backlinks (1)
  2. (b) The making of a declaration pursuant to § 32-11-104 shall not affect in any manner the sale, procurement or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by withholding or withdrawal of medical care from an insured declarant.
  3. (c) No physician, health care facility or other health care provider, and no health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital plan, shall require any person to execute a declaration as a condition for being insured for, or receiving, health care services.
  4. (d) Nothing in this chapter shall impair or supersede any legal right or legal responsibility that any person may have to effect the withholding or withdrawal of medical care in any lawful manner. In this respect, the provisions of this chapter are cumulative.
  5. (e) This chapter shall create no presumption concerning the intention of an individual who has not executed a declaration to consent to the use, withholding or withdrawal of medical care.
  6. (f) A competent declarant, unable to sign the declaration, may make a signature as provided in § 1-3-105.
  7. (g) If any provision of this chapter or the application of any provision of this chapter to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
  8. (h) No physician or health facility that, acting in accordance with the requirements of this chapter, causes the withholding or withdrawal of medical care from a patient, shall be subject to civil liability therefrom. No health care provider, acting under the direction of a physician, who participates in the withholding or withdrawal of medical care in accordance with this chapter shall be subject to any civil liability. No physician, or health care provider acting under the direction of a physician, who participates in the withholding or withdrawal of medical care in accordance with this chapter shall be guilty of any criminal act or of unprofessional conduct.
  9. (i) No physician or health care provider shall be subject to civil or criminal liability or considered guilty of unprofessional conduct as a result of actions under this chapter that are in accord with reasonable medical standards or as a result of another physician's or health care provider's actions or failure to act in accordance with this chapter.
History (2)
  • Acts 1985, ch. 355, § 10
  • 1991, ch. 344, § 7.
§ 32-11-111. Living wills executed outside Tennessee — When effective.
  1. A living will that is executed outside of this state by a nonresident of this state at the time of execution shall be given effect in this state if that living will is in compliance with either this chapter or the laws of the state of the declarant's residence.
History (1)
  • Acts 1991, ch. 344, § 8.
§ 32-11-112. Living wills executed before July 1, 1991 — When effective.
  1. A living will executed before July 1, 1991, shall be effective if it was executed in compliance with this chapter as in effect on the date that living will was executed, notwithstanding that the living will does not comply with revisions to this chapter since that date.
History (1)
  • Acts 1991, ch. 344, § 8.
§ 32-11-113. Effect and interpretation of living wills.
  1. (a) A living will entered into before July 1, 2004, under this chapter shall be given effect and interpreted in accord with this chapter.
  2. (b) A living will entered into on or after July 1, 2004, that evidences an intent that it is entered into under this chapter shall be given effect and interpreted in accord with this chapter.
  3. (c) A living will entered into on or after July 1, 2004, that does not evidence an intent that it is entered into under this chapter may, if it complies with the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18, be given effect as an individual instruction under that act.
History (1)
  • Acts 2004, ch. 862, § 4.