Introduction

 

Under Virginia law, an individual’s will must meet specific requirements to be valid.  This blog outlines some of the legal requirements.  An attorney engaged by an individual to prepare his or her will should provide guidance that assists in meeting those requirements.

 

Proper Execution of a Will 

 

One prerequisite for a valid will relates to the manner in which the will is executed.  To be legally effective, a will must be executed in accordance with procedural rules that govern the signing and witnessing of valid wills.  If those rules are not followed in executing a will, the will is not valid.

 

If a person writing a will (the testator) resided in Virginia on his or her death, then the laws of Virginia govern the procedures regarding the execution of the will.  Virginia law generally requires that the testator sign the will while 2 witnesses are present.  Under Virginia law, it is also generally necessary that each witness sign the will in the testator’s presence.

 

An exception to the rule requiring 2 witnesses to the signing of a will applies when a will is entirely in the testator’s handwriting and signed by the testator.  Such a will is referred to as a holographic will.  In order for a holographic will to be effective, it must be proven by 2 disinterested witnesses that the will is entirely in the testator’s handwriting and that it was signed by the testator.

 

Testamentary Intent

 

A testator must not only ensure that his or her will is properly executed, he or she must also sign the will with the requisite testamentary intent. A testator has testamentary intent if he or she signs the document with the intent that the document shall in fact be his or her last will and testament.  In other words, testamentary intent exists if the testator intends that the document will actually control how the testator=s assets will be distributed on his or her death.

 

Testamentary Capacity

 

A testator’s will is not valid unless he or she has testamentary capacity.  Whether a person has testamentary capacity depends on his or her ability to remember certain details and his or her knowledge of other details.  Specifically, to have testamentary capacity, a testator must be capable of recollecting the following:

 

  1. the testator’s property,

 

  1. the persons who would receive the testator’s property if he or she died without a will (referred to as dying intestate), and

 

  1. that those persons would receive the testator’s property if he or she died intestate.

 

In addition, when the testator is executing the will, the testator must know the nature of the activity in which he or she is engaged and the manner in which he or she wants to dispose of his or her property.  In this context, the manner in which a testator wants to dispose of property normally refers primarily to his or her wishes regarding gifts of specific property to specific persons.

 

The time for determining whether a testator has testamentary capacity is the time when he or she executes the will.  In the case of a will contest, clear evidence that the testator had the required mental capacity when the will was executed cannot be overcome by testimony that the testator lacked such mental capacity at other times.

 

Final Note

 

An attorney who prepares a will for a client should be familiar with the requirements that must be met for a will to be valid in Virginia.  Mr. Fife of the Law Office of James D. Fife is able to use his knowledge about those requirements to help clients avoid challenges to their wills that could disrupt their estate plans.