                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                December 7, 2011 Session

               IN RE ESTATE OF THOMAS GRADY CHASTAIN

           Appeal by Permission from the Chancery Court for Polk County
                      No. P-933    Jerri S. Bryant, Chancellor


            No. E2011-01442-COA-R9-CV-FILED-DECEMBER 28, 2011




D. MICHAEL SWINEY, J., dissenting.


               I respectfully dissent from the majority’s Opinion. I believe that the answer
to the issue of “Whether the Will was signed in accordance with Tenn. Code Ann. § 32-1-
104” is a simple no. The majority, however, strives mightily to arrive at a conclusion that
the Testator’s signature on a document other than the purported Will somehow satisfies the
statutory requirement that the Testator signed the purported Will.

               The only instrument or document signed by the Testator, the “Self-Proved Will
Affidavit,” clearly shows by its own language that it is a separate instrument from that of the
purported Will. The first line names the document as a “Self-Proved Will Affidavit.” The
second line tells what to do with that document, i.e., “(attach to Will),” which shows that the
purported Will is a separate document intended to be attached to the Self-Proved Will
Affidavit. The single page Self-Proved Will Affidavit refers more than once to the purported
Will as an attached or separate document. For instance, the Self-Proved Will Affidavit
states, “the witnesses whose names are signed to the attached or foregoing instrument [the
purported Will] … each then declared ….” The Self-Proved Will Affidavit also states that
“the attached or foregoing instrument [the purported Will] is the last will of the testator, …
the testator willingly and voluntarily declared, signed, and executed the will in the presence
of the witnesses … [and that] the witnesses signed the will upon the request of the testator
….” All of this language in the Self-Proved Will Affidavit clearly shows that the purported
Will was intended to be, and was treated as, a separate document.

              Furthermore, the Self-Proved Will Affidavit is a separate legal document
created pursuant to Tenn. Code Ann. § 32-2-110, not Tenn. Code Ann § 32-1-104, which,
as the majority states, governs the execution of non-holographic wills such as the purported
Will. It simply is beyond question that the purported Will is one instrument and the Self-
Proved Will Affidavit is an entirely distinct and separate instrument. If in the case now
before us the Self-Proved Will Affidavit had instead been a different type of document, for
instance a letter, which stated the same substantive information but failed to comply with
the requirements of an affidavit, there is little question that this Court would find that the
requirements for execution of a will were not satisfied.

             It is undisputed that the purported Will and the Self-Proved Will Affidavit are
two separate and distinct instruments. It also is undisputed that the Testator’s signature
appears nowhere on the purported Will.

                I, contrary to the majority, believe that our Opinion in In Re Estate of
Stringfield, 283 S.W.3d 832 (Tenn. Ct. App. 2008) clearly supports the proposition that a
testator’s signature on an affidavit or any other document separate and apart from a purported
will is not a valid signature on the purported will as required by Tenn. Code Ann. § 32-1-104.
As does the majority, I continue to “adhere to our holding in Stringfield …,” but I differ from
the majority in that I believe that Stringfield does answer the question of whether a testator’s
signature on an affidavit or any other document separate and apart from a purported will
satisfies the statutory requirements pertaining to a testator’s signature. The latitude in
Stringfield as it pertains to a testator’s signature concerns only how a testator may sign the
will, but Stringfield in no way gives any latitude to the statutory requirement that the testator
must do exactly that, sign the will itself.

                The requirements necessary to have a validly executed will are those created
by our General Assembly. Those statutory requirements necessary to have a valid will are
based upon policy decisions as determined by our General Assembly. I respectfully suggest
that it is not the role of this Court to ignore the long standing statutory requirements as
adopted by our General Assembly, which establish the policy of this State with regards to
what is necessary for the creation of a valid will. Are those requirements too stringent?
Should more leniency or latitude be allowed in the creation of a will than is now provided
by statute? While these are valid questions, they are questions to be answered by our General
Assembly and not the courts.

              For these reasons, I respectfully dissent from the majority’s decision. I would
affirm the decision of the Trial Court.




                                                     _________________________________
                                                     D. MICHAEL SWINEY, JUDGE

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