Execution of Wills

Question 1

What is a Will?

Answer 1

A will is an instrument executed in accordance with applicable state formalities that may direct the disposition of a decedent’s property at death and/or set forth instructions pertaining to the management of the persons or assets.
A will is ambulatory and has no legal effect until the testator’s death.

Question 2

Codicil

Answer 2

Is a testamentary instrument that amends, supplements, or revokes a will.

Question 3

General Requirements

Answer 3

1. Must be 18 years old and of sound mind
2. Testamentary Intent
3. Testamentary Capacity

Question 4

Testamentary Intent

Answer 4

The testator must have present testamentary intent, meaning that the testator must:
(1) intend to dispose of property
(2) intend for that disposition to happen at the time of death, and
(3) intend that this instrument accomplish that purpose.

Question 5

Promise to Make Future Will

Answer 5

A promise to make a will in the future does not satisfy the testamentary intent requirement. Testamentary intent must be ascertained from the face of the will.

Question 6

Testamentary Capacity

Answer 6

A testator’s mental capacity is determined at the time of will execution. They must have the ability to understand:
1) the nature and extent of their property
2) the persons who are the natural object of their bounty
3) the nature of the act that they are performing
4) the way in which all the foregoing concepts interact, such that they formulate a cohesive plan and orderly scheme of disposition

Question 7

Execution of Attested Wills

Answer 7

To be valid and admissible to probate, the will or codicil must meet VA’s formal requirements of due execution. The state requires:
1) the will or codicil be in writing (limited circ. for oral)
2) the will or codicil be signed by the testator or by another in the testator’s presence and at their discretion.
3) there be 2 attesting witnesses
4) Presence requirements must be satisfied
5) The testator must sign the will in the witnesses’ joint presence
6) the witnesses must sign in the testator’s presence but not necessarily in the presence of one another.

Question 8

Testator’s Signature

Answer 8

Any mark affixed by the testator with the intent that it operate as their signature is sufficient.

Question 9

Proxy Signature

Answer 9

The testator may be assisted in signing their will. A proxy signature is acceptable so long as the proxy signs in the testator’s presence and at the testator’s direction.

Question 10

Order of Signing

Answer 10

Not material - as long as all of the signings occurred as part of a single, continuous transaction.

Question 11

Where must signature be located?

Answer 11

Virginia does not require that a testator sign at the end of a will, but it must be manifest that the signed name is intended as a signature.

Question 12

Witness Competency

Answer 12

The witnesses must be competent, meaning that at the time of signing, they are able to testify to the facts of the will’s execution in court.

Question 13

Conscious Presence Test

Answer 13

The testator does not have to physically see the witnesses as they sign. Witnesses sign “in the testator’s presence” if the testator is aware of where they are and what they are doing, and if the testator could see them by a slight physical exertion on the testator’s part.

Question 14

Publication Requirement

Answer 14

Virginia has NO publication requirement. The witnesses do not need to know they are signing a will, and the will is validly attested even if they thought they were witnesses to a different document.

Question 15

Interested Witnesses

Answer 15

In Virginia, a person is not disqualified as a witness to a will solely because of an interest in the will or the estate of the testator, and such witness does not forfeit their interest.

Question 16

Attestation Clause

Answer 16

An attestation clause recites the elements of due execution. Although not legally required, an attestation clause raises a presumption that the will was validly executed and is prima facie evidence of the facts recited therein.

Question 17

Self-Proving Will

Answer 17

A self-proving affidavit recites all of the elements to which the witnesses would testify in open court. It is notarized by a notary public.

Question 18

Dispensing Power Statute

Answer 18

This allows the court to dispense with formal requirements in certain cases.

So, even though A document is not executed in full compliance with VA’s will execution statute, it can nonetheless be treated as a validly executed testamentary instrument if its proponent establishes by clear and convincing evidence that the decedent intended the document to constitute their will.

Question 19

Dispensing Power Statute + No Writing

Answer 19

The dispensing power cannot be applied to cure the failure of the will to be in writing

Question 20

Dispensing Power Statute + No Signature By Testator

Answer 20

The statute cannot be used to excuse any requirement for the testator’s signature, except where:
1) There is a “switched will” case, and two persons mistakenly sign each other’s will, or
2) The testator signs the self-proving affidavit, but not the will itself.

Question 21

Dispensing Power Statute + Defective Witnessing

Answer 21

The dispensing power statute will often be used to excuse defective witnessing. A court may dispense with the requirement that there be two witnesses if there is clear and convincing evidence that the decedent intended a document to be their will.

Question 22

Conditional Wills

Answer 22

Conditional wills are operative only if some condition stated in the will is satisfied.

Question 23

Holographic Wills

Answer 23

Virginia recognizes holographic wills or codicils, provided they:
1) Meet the requirements for testamentary capacity and present testamentary intent
2) Are wholly in the testator’s handwriting, and
3) Are signed by the testator.

Can take any form

Question 24

Oral Wills - Soldiers and Sailors

Answer 24

Virginia recognizes oral wills for soldiers in active military service and mariners and sailors at sea. These wills are valid for personal property only.

Question 25

Proof of Wills in Probate

Answer 25

When a will is offered for probate, the burden of proof is on the will proponents to show by a preponderance of the evidence that the will was duly executed.

Question 26

Ex Parte Probate

Answer 26

In ex parte probate, there is no notice to interested parties.
- If the will is self-proved, attesting witnesses are not called because the court relies on the affidavit.
- If it is not self-proved, the testimony of one witness is sufficient if the other witness is accounted for.

Question 27

Inter Partes Probate

Answer 27

Inter partes probate is full judicial proceeding with notice to interested parties and the right to a jury trial.

Question 28

Holographic Wills

Answer 28

Two disinterested persons must testify that the will is wholly in the testator’s handwriting.