will execution

Question 1

requirements for all wills and codicils

Answer 1

(1) 18 years old and of sound mind [or emancipated minor]

(2) Present testamentary intent at the time of execution [NOT a promise to make a will in the future]:

(a) intend to dispose of property

(b) intend for that disposition to happen at the time of death

(c) intend that this instrument accomplish that purpose.

*Evidence of intent appearing in the will is admissible

• ## A deed that fails as an inter vivos conveyance cannot be probated as a will,

(3) Testamentary capacity at time of will’s execution

• The nature and extent of their property
• The persons who are the natural object of their bounty
• The nature of the act that they are performing

and

• The way in which all the foregoing concepts interact, such that they formulate a cohesive plan and orderly scheme of disposition

Question 2

what is a will

Answer 2

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 as to to the management of the persons or assets.

ambulatory = no legal effect till death

Question 3

what is a codicil

Answer 3

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

Question 4

execution of attested wills - requirements

Answer 4

To be valid and admissible to probate, the will or codicil must meet Virginia’s formal requirements of due execution.

(1) The will or codicil is in writing (In very limited circumstances, oral wills are allowed.)

(2) The will or codicil is signed by the testator or by another in the testator’s presence and at their direction

• Any mark made with intent for it to constitute signature counts [initial, etc.]
• Order of signing is not material as long as one continuous transaction
• need not be at the end [but consider whether it is really only a draft]

(3) two attesting witnesses who are competent

• notary can be one W but cannot sub for two
• competence = at the time of signing, they are able to testify to the facts of the will’s execution in court

(4) Testator signs will or acknowledges previous signature in the witness’s joint presence

(5) Witnesses sign the will in the testator’s “conscious” presence, but not necessarily in the presence of one another

• signature need not be at end
• Testator does not have to physically see witnesses as they sign, just has to be aware of where witnesses are and what they are doing – satisfied if testator could see them by slight physical exertion on his part

NOT REQUIRED IN VA:

(A) publication
Ws need not know they are signing a will, and may even think they are signing something else

(B) disinterested witnesses
W disqualified solely b/c of an interest in the will or estate and person does not forfeit interest by being a witness; an executor may be an attesting witness

Question 5

Requirements for holographic wills [handwritten, unattested wills or codicils]

Answer 5

[also need all of the requirements to make a will in general – testamentary capacity and present intent]

(1) Wholly in the testator’s handwriting

• Must be able to be understood without referring to the typed portions; must be able to disregard typed portions without violating testator’s intent
• Words written by someone else will be disregarded in some circumstances
• court will consider all handwritten entires

(2) Signed by testator, preferably at the end
- If not at the end, unclear that finality was intended

(3) liberally construed

(4) need not be on paper

Question 6

dispensing power statute:

when formalities may be dispensed with and when they cannot be

Answer 6

HOW TO SAVE YOUR WILL USING DISPENSING POWER

(1) Proponent must establish clear and convincing evidence that the decedent intended the document to constitute their will

(2) All interested persons must be made parties to the proceeding invoking the statute

(3) An action to use this statute to save a will must be brought within one year of decedent’s death

-

FORMALITIES THAT CANNOT BE DISPENSED WITH

Lack of testator’s signature [but see exceptions]

No writing

Holographic instrument that lacks finality

-

FORMALITIES THAT CAN BE DISPENSED WITH

Switched wills case where two people mistakenly sign each other’s will

Testator signs self-proving affidavit, but not the actual will

Defective witnessing –If there is clear and convincing evidence that decedent intended document to be a will, court may dispense with the “two witnesses” requirement