Probate and Estate-Related Cases

Will, Construction of

Except as indicated, all indented material is copied directly from the court’s opinion. 

Decisions of the Tennessee Supreme Court

Decisions of the Tennessee Court of Appeals

In re Estate of Ballard, No. E2022-01147-COA-R3-CV, p. 10-12 (Tenn. Ct. App. Sept. 14, 2023). 

This Court discussed the standard of review to be applied in cases involving the construction of a will in In re Estate of Milam, stating:

“The purpose of a suit to construe a will is to ascertain and give effect to the testator’s intention.” In re Estate of Eden, 99 S.W.3d 82, 87 (Tenn. Ct. App. 1995) (citations omitted). “The construction of a will is a question of law for the court.” Briggs v. Briggs, 950 S.W.2d 710, 712 (Tenn. Ct. App. 1997) (citing Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn. Ct. App. 1989)). Accordingly, we review the probate court’s conclusions of law de novo without affording any presumption of correctness to those conclusions. In re Estate of Vincent, 98 S.W.3d 146, 148 (Tenn. 2003) (citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)).

“It is the absolute right of the testator to direct the disposition of his property and the Court’s [sic] are limited to the ascertainment and enforcement of his directions.” Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990) (citing Nat’l Bank of Commerce v. Greenberg, 195 Tenn. 217, 258 S.W.2d 765 (1953); Third Nat’l Bank in Nashville v. Stevens, 755 S.W.2d 459, 462 (Tenn. Ct. App. 1988)). “The cardinal rule in construction of all wills is that the court shall seek to discover the intention of the testator and give effect to it unless it contravenes some rule of law or public policy.” Fisher v. Malmo, 650 S.W.2d 43, 46 (Tenn. Ct. App. 1983); see also Briggs v. Briggs, 950 S.W.2d 710, 712 (Tenn. Ct. App. 1997); Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn. Ct. App. 1989). In seeking out the testator’s intent, we have several rules of construction to aid us in that effort. However, all rules of construction are merely aids in ascertaining the intent of the testator. Sands v. Fly, 200 Tenn. 414, 292 S.W.2d 706, 710 (1956).

In gleaning the testator’s intent, we look to the entire will, including any codicil. Stickley v. Carmichael, 850 S.W.2d 127, 132 (Tenn. 1992); Presley, 782 S.W.2d at 488. The testator’s intent is to be determined from the particular words used in the will itself, Stickley, 850 S.W.2d at 132, and not from what it is supposed the testator intended. Briggs, 950 S.W.2d at 712; Presley, 782 S.W.2d at 488; Fisher, 650 S.W.2d at 46. “Where the will to be construed was drafted by the testator himself who was not versed in the law and without legal assistance the court in arriving at the intention of the testator should construe the language of the will with liberality to effectuate what appears to be the testamentary purpose.” Davis v. Anthony, 53 Tenn. App. 495, 384 S.W.2d 60, 62 (1964) (citations omitted). We are also guided by an additional principle of construction; when a decedent undertakes to make a will, we must presume that the decedent intended to die testate, and we must seek to construe the will, where possible, as including all of the testator’s property at death. Davis, 384 S.W.2d at 62 (citations omitted). The legislature of this state has provided as follows:

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 appears by its words in context.

Tenn. Code Ann. § 32-3-101 (2003). Since this statute is in derogation of the common law, it must be strictly construed. Davis v. Price, 189 Tenn. 555, 226 S.W.2d 290, 292 (1949); see also McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312, 313 (1917).


“Every word used by a testator in a will is presumed to have some meaning.” In re Estate of Jackson, 793 S.W.2d 259, 261 (Tenn. Ct. App. 1990) (citing Third Nat’l Bank v. Stevens, 755 S.W.2d 459 (Tenn. Ct. App. 1988)).


“[F]or the testator’s will to be given effect, there must be some evidence of that intent: ‘We cannot determine the devolution of estates based upon the mere surmise as to the testator’s intention.’ ” In re Walker, 849 S.W.2d 766, 768 (Tenn. 1993) (quoting Pinkerton v. Turman, 196 Tenn. 448, 268 S.W.2d 347, 350 (1954)).

In re Estate of Milam, 181 S.W.3d 344, 353-54 (Tenn. Ct. App. 2005). The dispositive question in this appeal is one of law. A trial court’s conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

Bellar v. Eatherly, No. M2022-00403-COA-R3-CV, p. 5 (Tenn. Ct. App. Mar. 3, 2023). 

We review a trial court’s decision on a motion for summary judgment de novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). “The construction of a will is a question of law for the court and will construction cases are uniquely suited to the summary judgment procedure because they generally involve legal issues only.” Rentz, 1991 WL 164403, at *2 (citing Presley v. Hanks, 782 S.W.2d 482 (Tenn. Ct. App. 1989); Est. of Robison v. Carter, 701 S.W.2d 218 (Tenn. Ct. App. 1985)).

This case involves the construction of a will, and the material facts are not in dispute. When we are required to construe a will and there is no dispute as to any material fact, the question on appeal is one of law. In re Est. of McFarland, 167 S.W.3d 299, 302 (Tenn. 2005). A question of law is reviewed de novo, with no presumption of correctness. See id.

In re Estate of McKinney, No. M2021-00703-COA-R3-CV, p. 4-5 (Tenn. Ct. App. June 9, 2022).

Construction of a will, including whether an heir has been disinherited, is a question of law for the court. In re Estate of Eden, 99 S.W.3d 82, 91 (Tenn. Ct. App. 1995) (citing McDonald v. Ledford, 140 Tenn. 471, 477-78, 205 S.W. 312, 314 (Tenn. 1918); Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn. Ct. App. 1989)). “Since construing a will involves questions of law, our review will be de novo on the record without any presumption of correctness.” Id. at 92 (citing Presley, 782 S.W.2d at 487).


Estate of Mary Bell McGraw Marlin v, Marlin, No. M2021-00059-COA-R3-CV p. 12 (Tenn. Ct. App. March 25, 2022).

The construction of a will is a question of law for the court; therefore, we review the trial court’s conclusions of law de novo affording them no presumption of correctness.  Horadam v. Stewart, No. M2007-00046-COA-R3-CV, 2008 WL 4491744, at *5 (Tenn. Ct. App. Oct. 6, 2008), R. 11 perm. app. denied April 27, 2009.


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