Themis Essay 918 Flashcards
The standard method for will execution is
a signed and witnessed written instrument–an “attested will.”
An attested will must be
(i) in writing, and (ii) signed by the testator (or a proxy at the testator’s direction and in the testator’s presence).
A testator must sign (or attest to her signature) in the presence of
at least two competent witnesses present at the same time, and the witnesses must subscribe the will in the testator’s presence.
In Virginia, a testator has sufficient testamentary capacity if, at the time the will was executed,
the testator was at least 18 years of age and of sound mind.
A testator is of “sound mind” if, at the time the will was executed, he was
(i) capable of recollecting his property and the objects of his bounty; and (ii) knew he was signing a will and how he wanted his property to be disposed.
The proponents of a will have the burden of proving mental capacity by
a preponderance of the evidence.
A testator need not retain all the forces of intellect that he once had in order to
have testamentary capacity.
The bar for testamentary capacity is lower than that of
being legally competent to transact business.
Evidence of sickness or impaired intellect at other times is
insufficient, standing alone, to render a will invalid.
Being placed under guardianship is not prima facie evidence of
lack of testamentary capacity.
Virginia does not recognize common law marriage, although it does recognize
common law marriages contracted in other jurisdictions where such unions are recognized.
If the decedent is not survived by a spouse or children, then we initially divide the estate at
the generation where there is a surviving descendant.
If a decedent is not survived by a spouse or descendants, then
the intestate’s parents take.
If a decedent has no surviving parents, the property passes to the intestate’s
siblings (and their descendants by representation).
Virginia has a distinctive rule that gives half-blood kin
one-half the share of similar full-blood relation.
