## Facts

- Georgie Miriam (Georgie M.) Wait prepared a written instrument intended as her will, leaving substantially all of her real and personal property to her friend, Sylvia Sunderland, and leaving $1 to various family members.
- The instrument nominated Sunderland as executor.
- Wait was weakened by age and had difficulty writing. Sunderland helped Wait write portions of the instrument, but Sunderland was not present when Wait attempted to execute it.
- Wait asked two neighbors, Leslie Cunningham and Dock White, to act as attesting witnesses.
- In the presence of the two witnesses, Wait attempted to sign the instrument. She put pen to paper and made a mark, but she did not complete a signature. The witnesses testified that Wait’s hand shook and she discontinued the attempt.
- Neither Cunningham nor White saw Wait sign her name, and the instrument was not shown to have been signed by Wait before the witnesses signed.
- Wait asked the witnesses to sign the instrument before they left, and they signed as attesting witnesses.
- White later testified that Wait said she signed the will a few days later after she regained better control of her hand, but this alleged signing occurred outside the presence of the attesting witnesses.
- The trial court refused to admit the instrument to probate because the execution requirements for a will were not met. Sunderland, as proponent of the will, appealed.

## Issues

1. Whether a written instrument may be probated as a will when, at the time the witnesses attest, the testatrix has not signed the instrument as required by Tennessee’s will-execution statute.
2. Whether an incomplete mark made during an abandoned attempt to sign can qualify as the testatrix’s “signature” absent proof it was intended and adopted as her signature.
3. Whether an asserted later signing, done after the witnesses have attested and outside their presence, can cure the lack of a statutorily sufficient signature connected to the attestation.

## Decision

- The Tennessee Court of Appeals affirmed the judgment refusing probate.
- The court held the instrument was not executed as a valid will because it was not shown to have been signed by the testatrix in the manner required by statute at the time of attestation.
- The court concluded the proof did not establish that Wait’s partial mark during the execution attempt was intended as her signature.
- The court rejected reliance on Wait’s alleged later signing because it was not part of a valid execution ceremony with the required witnessing.

## Legal Principles

- A will is valid only if executed in the manner the Wills Act requires, including a signature by the testator and attestation by two witnesses in the statutorily required way.
- The testator’s signature must be an act the testator intends to serve as the testator’s signature; a stray or incomplete mark is not enough without proof of intent to sign.
- Witness attestation must relate to a will that has been properly signed by the testator as part of the execution process; an intention to sign later is not a substitute for the signature requirement.
- A later signing outside the presence of the attesting witnesses does not supply the missing statutory elements when the witnesses already signed without observing (or being presented with) a valid signature by the testator.

## Conclusion

The Court of Appeals affirmed denial of probate because the evidence showed Wait did not sign the instrument when the witnesses attested, the attempted mark was not proven to be her adopted signature, and any later signing outside the witnesses’ presence could not satisfy Tennessee’s statutory requirements for executing an attested will.


In re Estate of Wait, 43 Tenn. App. 217, 306 S.W.2d 345 (1957)