Execution of Wills

Question 1

A will is…

Answer 1

a formally executed instrument that directs the disposition of a decedent’s property at death.

Question 2

A codicil is…

Answer 2

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

Question 3

The threshold requirements for a testator creating a will are:

Answer 3

1. 18+ or emancipated;
2. Testamentary capacity;
3. Present testamentary intent.

Question 4

A testator’s mental capacity is determined at…

Answer 4

the time the will was executed.

Question 5

Testamentary capacity requires that the testator has the ability to understand:

Answer 5

1. The nature and extent of their property;
2. The persons who are the natural object of their bounty;
3. The nature of the act that they are performing; and
4. The scope and meaning of the disposition.

Question 6

To be valid and admissible to probate, a will (or codicil) must meet Virginia’s formal requirements. A will is properly executed if it is:

Answer 6

1. Signed by the testator;
2. Witnessed by two attesting witnesses;
3. Testator must be in the presence of both witnesses when signing; and
4. Each witness must also sign in the testator’s presence.

Question 7

A proxy signature is acceptable in place of a testator’s so long as…

Answer 7

the proxy signs in the testator’s presence and at the testator’s direction.

Question 8

The exact order of the signing of the attested will is not material, so long as all of the signings occur as…

Answer 8

part of a single, continuous transaction.

Question 9

Signing witnesses must be deemed to be _____ at the time of signing.

Answer 9

competent

Question 10

Witnesses who sign when the testator cannot physically see them, but when the testator is aware of where they are and what they are doing, and the testator would be able to see them by a slight physical exertion on the testator’s part will be considered “in the testator’s presence” through the…

Answer 10

conscious presence test

Question 11

Do witnesses need to know that they are signing a will?

Answer 11

No, Virginia will consider a will properly attested even if the witnesses thought they were witnesses to a different document.

Question 12

Is an executor or a beneficiary of a will able to be that same will’s witness?

Answer 12

Yes, the interested witness rule has been abolished in Virginia.

Question 13

What does “strict privity” mean in Virginia?

Answer 13

Virginia is a strict privity state, which means that only the client who contracted for the attorney’s services can sue for negligence.

Beneficiaries of a negligently prepared or executed will have no cause of action against the attorney.

Question 14

An attestation clause (reciting the elements of due execution) raises a…

Answer 14

presumption of will validity.

Question 15

A self-proving affidavit can be…

Answer 15

substituted for the witnesses’ testimony. It will serve the same function as a deposition or interrogatory, and will be accepted as if it had been given before the court.

Question 16

Virginia has enacted a ______, which allows the court to dispense with formal requirements in certain cases.

Answer 16

dispensing power statute

Question 17

Under the dispensing power statute, a document not executed in full compliance of the statute can be treated as a validly executed testamentary instrument if its proponent…

Answer 17

establishes by clear and convincing evidence that the decedent intended the document to constitute their will.

Question 18

The dispensing power statute (may/may not) be applied to cure the failure of the will to be in writing.

Answer 18

may not.

Question 19

The dispensing power statute cannot be used to excuse any requirement for the testator’s signature, except where:

Answer 19

1. There is a “switched will” case, and two persons mistakenly sign each other’s will, or
2. The testator signs the self-proving affidavit, but not the will itself.

Question 20

The dispensing power statute is most often used to excuse…

Answer 20

defective witnessing.

Question 21

Virginia (does/does not) allow notarization to substitute for a witness attestation.

Answer 21

Does not, but there is an argument here that the state dispensing power can be applied to save the will.

Question 22

Conditional wills are…

Answer 22

operative only if some condition stated in the will is satisfied.

[but – look out for language merely expressing motive for making the will].

Question 23

The testator’s will states, “I have planned a trip to summit Mount Everest, and so I am drafting this last will and testament.” Testator successfully climbs Mount Everest, returns home, and dies three years later.

Should this will be admitted to probate?

Answer 23

Yes, the language used here is likely merely expression of testator’s motive to draft the will.

Question 24

Virginia recognizes holographic wills (or codicils), provided they:

Answer 24

1. Meet the requirements for testamentary capacity (18+ sound mind) & present testamentary intent;
2. Are wholly in the testator’s handwriting; and
3. Are signed by the testator.

Question 25

The presence of typewritten text does not affect the validity of a holographic will if…

Answer 25

the typewritten portion may be disregarded without violating the testator’s intent.

Question 26

If a holographic will interweaves portions of handwritten text with typewritten text…

Answer 26

it is not a valid holographic will.

Question 27

Although a will proponent may select specific handwritten entries for the court…

Answer 27

the court will consider all handwritten entries made by the testator on a document.

Question 28

Words written on a holographic will by someone other than the testator will be…

Answer 28

disregarded in the appropriate circumstances.

Question 29

If a holographic will is not signed at the end of the document, there must be…

Answer 29

some formal closing statement to show the “finality of the instrument” and indicate that the testator’s name, written elsewhere in the document, is intended to be their signature.

Question 30

The dispensing power (can/cannot) be used to save a holographic instrument that lacks a finality.

Answer 30

cannot.

Question 31

When a will is offered for probate, the burden of proof is on the _______ to show by __________ that the will was duly executed.

Answer 31

will proponent; preponderance of the evidence