WAS THE WILL PROPERLY EXECUTED?

Question 1

Requirements for All Wills

Answer 1

All valid wills require testator to have:

 -Legal capacity: at least age 18 
 and of sound mind

 -Testamentary capacity: 
 understand nature of act, 
 nature/extent of property, natural 
 objects of bounty

 -Testamentary intent: present 
 intent to make a will

Question 2

Requirements for Formal Attested Wills

Answer 2

(1) Testator with legal capacity, testamentary capacity, testamentary intent

(2) In writing (oral wills strictly limited to disposing of personal property of soldiers and sailors)

(3) Signed by testator or by another at testator’s direction and in testator’s presence

 -May be signed anywhere, does 
 not have to be at end of will

 -Need not be dated

(4) Witnessed by two attesting witnesses

-Testator must sign or 
 acknowledge will or signature in 
 witnesses’ joint presence

-Witnesses must sign in testator’s 
 presence—they do not have to 
 sign in presence of each other

      *Witnesses don’t need to know 
        that the document they’re 
        witnessing is a will

      *“Presence” in Virginia means 
         in conscious presence (does 
         not have to actually be 
         observed, but testator is 
         aware of what they are doing 
         and the testator could see 
         them by slight physical 
         exertion)

 -No order of signing required but 
  must be part of single 
  continuous transaction

 -OK if witness is also a 
  beneficiary. —will is valid and gift 
  to interested witness is valid

(5) Attestation clause is optional—recites elements of due execution, raises presumption of valid execution

(6) Self-proving affidavit is optional—recites elements witnesses would testify to if called to court

Question 3

Court’s Power to Dispense with Formalities

Answer 3

Watch for situations involving defective execution of wills. In Virginia, the court has a broad statutory power to dispense with formalities of will execution.

-Defective document can be treated as a valid testamentary instrument if proponent shows clear and convincing evidence that decedent intended document to be their will

-All interested persons must be made parties to the proceeding to invoke the statute, which must be brought within 1 year of death

-Dispensing power often used to cure defective witnessing

-The court does not have power to fix these serious errors:

  *Failure of will to be in writing

  *Lack of signature except in 
    cases of “switched wills” where 
     two people mistakenly sign 
     each other’s or in case where 
     testator signs self-proving 
     affidavit but not will

Question 4

Requirements for Holographic Wills

Answer 4

Holographic (handwritten) wills do not require witnesses, but they must have:

-Testator with legal capacity, testamentary capacity, testamentary intent

-Provisions of will “wholly” in testator’s handwriting

 *“Wholly” requirement not 
    applied literally; some 
    typewritten text OK if it could be 
    disregarded without violating 
    testator’s intent

-Signature of testator

  *Signature need not be at end of 
    document but if not, there must 
    be formal closing statement to 
    show finality of instrument