Requirements for Executing a Valid Will

Question 1

Four Requirements for Attested Will

What are the four requirements for validly executing an attested will?

Answer 1

1. In writing
2. Signed by the testator (or signed by a proxy at the testator’s direction
   and in the testator’s presence);
3. The testator must sign or acknowledge the will in the presence of at least 2 competent witnesses, both or all of whom are present at the same time;
4. The witnesses must subscribe (sign) the will, which means they must sign the will in the presence of the testator.

Question 2

Four Requirements for Attested Will

Regarding signing, what is the key?

Answer 2

There is no particular significance to where the testator or witnesses sign; the key is that it is all doen as a single, continuous transaction

Question 3

Four Requirements for Attested Will

Regarding the presence of witnesses, what is the conscious presence test?

Answer 3

the witnesses do not have to be in the testator’s sight; it is sufficient that the testator is aware that the witnesses are present, knows what they are
doing, and could see them by exerting some effort.

Question 4

Four Requirements for Attested Will

Does a witnesse’s interest in the will or the estate make them incompetent?

Answer 4

No

Question 5

Four Requirements for Attested Will

What are the requirements for executing an attested codocil?

Answer 5

the same for an attested will

Question 6

Four Requirements for Attested Will

What does a codocil do?

Answer 6

It amends the will but it also results in the will being deemed re-executed as of the date of the codicil.

Question 7

Four Requirements for Attested Will

Can a codocil revive a revoked will?

Answer 7

Yes, by way of codocil

Question 8

Four Requirements for Attested Will

What is incorporation by reference?

Answer 8

allows for adocument that is not part of the will (and that is not present when the will is executed) to be treated as though it were part of the will

Question 9

Four Requirements for Attested Will

What are the three requirements for incorporation by reference?

Answer 9

1. The document that would be incorporated by reference must exist at the time the will is executed;
2. The face of the will must indicate that the document is in existence at the time the will is executed;
3. The will must identify and describe the document with reasonable certainty

Question 10

Four Requirements for Attested Will

What is the one type of document incorporated by reference that does not need to satisfy the requirement that it exist at the time the will is executed?

Answer 10

Memorandum that disposes of tangible personal property

Question 11

Three Requirements for Holographic Will

What are the three requirements (really four)?

Answer 11

1. The will must be entirely in the handwriting of the testator.
2. Two disinterested witnesses must identify the handwriting as the testator’s
3. The testator must sign the will or have someone else sign the will in the testator’s presence and at the testator’s direction.
4. Must manifest the testator’s intent to make a last and final disposition of the testator’s property

Question 12

Three Requirements for Holographic Will

With what requirements are VA courts flexible?

Answer 12

the VA courts are flexible on the requirement that the holographic will be entirely in the testator’s handwriting

Question 13

Harmless Error

What is the harmless error doctrine?

Answer 13

If the testator does not satisfy one of the requirements for executing
a valid attested will or a valid holographic will, the will can still be treated as a valid will.

Question 14

Harmless Error

f

What the proponent of a flawed will prove?

Answer 14

must show by clear and convincing evidence that the testator intended
for the document to be his will;

Question 15

Harmless Error

What can the doctrine not excuse? Exceptions?

Answer 15

The signature requirement except:
1. Two people mistakenly sign each other’s wills;
2. The testator signs the self-proving affidavit to the will rather than the will itself.

Question 16

Real property can be transferred through…

Answer 16

a transfer-on-death clause in a deed

Question 17

How do Virginia courts enforce a contract relating to a will?

Answer 17

Like any other contract

Question 18

Normally the Statute of Frauds require that the contract be in writing if it involved the devise of real proeprty, but VA Courts will enforce an oral contract to make a will for the devise of real property if three requirements are met:

Answer 18

1. The agreement is certain and definite in its terms (by clear and convincing evidence)
2. The party seeking enforcement performs under the contract;
3. Failure to enforce the contract would work a fraud on the party seeking
   enforcement.

Exercising its powers as a court of equity, a court may even impose a constructive trust on the property. And even if there is not an enforceable contract, the court may order compensation to the party who performed the services