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What Does It Take to Revoke a Tennessee Will or Part of It?

Whether or not a will has or has not been revoked can sometimes be the subject of probate litigation in Tennessee courts. The answer to that question may also determine who receives a substantial amount of money or other property.

There is a Tennessee statute, T.C.A. §32-1-201, which sets forth several methods by which a will, or part of a will, can be revoked. Under that statute, a will, or any part of the will, may be revoked by:

(1)         A subsequent will.  Usually, wills expressly state that they revoke all previous wills. The statute also provides that, even if the will does not expressly revoke a prior will, it does so if it is inconsistent with the prior will.

(2)         A document of revocation which is executed in the same manner as an attested will or a holographic will which expressly revokes the prior will or a part of it.

(3)         If the will is “burned, torn, cancelled, obliterated or destroyed” with the intent to revoke.  This method is effective if done by the testator, or by someone acting for the testator and in his or her presence when the act is performed.

(4)         A marriage of the testator occurring after the will was made and the birth of a child of the testator after the will was made.

The provision allowing a will, or part thereof, to be revoked by being “cancelled” was interpreted by the Court of Appeals of Tennessee in the case of In re Estate of Warren (Tenn. Ct. App 1999).  This is an important case with which any Tennessee probate litigation attorney should be familiar.  Here are the facts:

  • A father (“Testator”) executed a will (“Will”) sometime before 1991 (the court did not give the date)
  • The Testator had two sons
  • In the Will, the Testator left to one son only all of Testator’s stocks, bonds and cash
  • In the Will, Testator left real estate to both sons and the residuary clause provided that any property not specifically bequeathed was to be shared equally by his sons
  • The son to whom no stocks, bonds or cash had been left took the position that that provision of the Will had been revoked by certain handwriting on the Will
  • The provision of the Will whereby one son had been left the stocks, bonds and cash had been underlined and enclosed in two sets of parentheses, by handwriting. Above it, in handwriting, appeared the word “void” and the initials of Testator
  • The son who was originally to receive all of the stocks, bonds and cash testified that he had looked at the Will in 1991 and the handwriting in question was not on it
  • The Testator died in 1997 at which time both sons discovered the handwriting on the Will

The Court of Appeals held that the handwriting was that of the Testator, and that it revoked that part of the Will leaving the stocks, bonds and cash to only one son. In reaching its conclusion, the court relied on an earlier Tennessee case with similar facts where the court had held that the handwriting constituted a “cancellation.”

The In re Estate of Warren case was decided after the enactment of T.C.A. §32-1-201, so it is solid authority that a will, or part thereof, can be considered revoked by the handwriting of the testator on the will even where the handwriting is placed on the will after it was executed and attested.

In addition to the above statute, there is another statute, T.C.A. §32-1-202, with which a Tennessee probate litigation lawyer should be familiar.   That statute provides that, if a testator is divorced after executing a will, any provision leaving anything to the former spouse is considered revoked.

Practitioners should also keep in mind that, in Tennessee, where the original of a will cannot be found, it is presumed to have been revoked. That area of Tennessee probate law is the subject of a previous blog.