This is the November 19, 2007, issue of Elder Law FAX, a free newsletter published by the Elder Law Practice of Timothy L. Takacs   Will or No Will? The Tennessee Court of Appeals has upheld a jury's decision that a handwritten document penned by a man who died a few hours later of cancer is not a Will. As a result of the jury verdict, the man's estate will be divided equally among his three children rather than left to just one of them.   Troy G. Blackburn was a widower. He had three grown children, Terry Blackburn, Bobbie Ellis, and Freddy Blackburn. Troy lived in a home on approximately forty-eight acres in Coffee County, Tennessee. He owned an excavating business called "Troy Blackburn and Son Excavating;" son Terry worked in this business with his father for several years.   About a year before his death, Troy was diagnosed with cancer. As his health deteriorated, he was hospitalized. After a time, Troy was discharged to his home, where he received hospice care. Freddy lived with Troy for a period of time before his death, but also maintained an independent residence.   On September 20, 2002, the day before he died, Troy was visited at various times by all three of his children. Around 5:00 p.m. that evening, while Freddy was present and Terry and Bobbie were away, Troy wrote the following on a piece of paper: "Freddy can do what ever he wants to with everything after I pass." Troy and dated the paper, and his signature was witnessed by his friends, Timothy Grosch and Barbara Lowery.   Later that evening, Freddy mentioned the handwritten document to Terry and Bobbie referring to it as their father's will. However, neither Terry nor Bobbie read the document at that time. Around 1:00 a.m. the next morning, on September 21, 2002, Troy died.   At his death, Troy owned his residence in Coffee County, valued at $96,800, two checking accounts worth about $23,932, and other personal property.   Freddy sought to admit the handwritten document to the probate court as Troy's Last Will and Testament. Terry and Bobbie disputed the validity of the document, and, therefore, following Tennessee procedure, the probate court submitted the document to a jury to answer the question: is the document the Last Will and Testament of Troy G. Blackburn?   The jury answered in the negative, and Freddy appealed. Writing for the three-judge panel, Tennessee Court of Appeals justice Holly Kirby upheld the jury's decision.   First, wrote Justice Kirby, the jury could not have found that Troy made a "formal will" because the requirements of the Tennessee statute were not met. That law says:   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.   The evidence at trial showed that Grosch and Lowery were not in the presence of Troy  and/or each other when they signed the document.   The requirements for a valid holographic will are as follows: "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." In addition, a testamentary intent must be evident from the words of the document itself, not from what the circumstances suggest the testator intended.   Under that latter requirement, the jury could justifiably find that the handwritten document was not a Will, held the appeals court. The document does not say it is a Will, has no heading, and does not define the "everything" to which it refers.   "Considering the surrounding circumstances and the ambiguity in the barely legible solitary statement written by the Decedent," wrote Justice Kirby, "there was material evidence for the jury to conclude that the Decedent, rather than intending for the writing to operate as a will, may have intended it for another purpose, such as to placate Freddy."   Estate of Troy G. Blackburn, November 14, 2007.