LexBar Essay - Keaton Flashcards
Wills are probated in the circuit court for the county or city where
(i) the decedent has a known place of residence;
(ii) if none, then where the decedent owned real property;
(iii) if none, then where the decedent died.
Absent clear and convincing evidence that a decedent desired to change their legal domicile permanently, a presumption applies that moving into a nursing home does not
change the decedent’s place of legal residence.
A contract to make a will is controlled by
the same rules and principals and is enforceable as other contracts.
In order to be enforceable, a contract to make a will must be
(i) certain and definite;
(ii) based upon valuable consideration; and
(iii) the proof thereof must be clear and convincing.
Where a contract to make a will deals with the transfer of real property,
it must satisfy the Statute of Frauds.
To satisfy the Statute of Frauds, a contract must:
(i) be in writing; and
(ii)be signed by the party to be charged.
Specific performance is the default remedy for enforcement of
real property contracts.
Valid contracts will supersede
valid wills, on any terms where they conflict.
To be entitled to probate, a will must be
duly executed.
For a will to be duly executed, entitling it to probate, it must:
(i) be signed by the testator in the presence of two competent witnesses who are present at the same time; and
(ii) who also sign the will in the presence of the testator.
If a will lacks a self-proving affidavit, then
the witnesses must testify in court for the will to be admitted to probate.
If witnesses to a will are unavailable to testify and can show good cause for their unavailability, then
the witnesses may be able to substitute a sworn deposition in place of in-court testimony.
Out-of-state residents may serve as executors in Virginia, so long as
they designate an in-state agent for service of process and post a surety bond, even if that requirement is waived in the will.
