Execution of Wills

Question 1

vocabulary:

Answer 1

TESTATE: decedent with a will

TESTATOR: person who CREATES the will

PROBATE: legal process for setting estate

Question 2

what is a will?

Answer 2

a will is an instrument executed in accordance with applicable state formalities that may direct the disposition of a decedents property at death and/or set forth instruction pertaining to the management of the person’s assets

an instrument does not need to dispose of property to be a will - it can merely point a personal representative or revoke or revise another will.

Question 3

when does a will have legal effect?

Answer 3

a will takes legal effect at the testator’s death

Question 4

when may a will be revoked or amended?

Answer 4

a will may be amended or revoked up until the testator’s death

Question 5

what is a CODICIL?

Answer 5

a codicil is testamentary instrument that AMENDS, SUPPLEMENTS, or REVOKES a will

Question 6

what are the requirements to execute a testamentary instrument?

Answer 6

Each testamentary instrument (will or codicil) must be executed in accordance with the state’s statutory requirements. States generally require exact compliance, but some courts in Virginia may excuse minor errors after applying the state’s dispensing power statute.

Question 7

when does a beneficiary have a property interest?

Answer 7

a beneficiary does not have a property interest until the time of death of the testator. Before the death of the testator, the beneficiary merely has an legal, unenforceable expectancy.

Question 8

what are the general requirements of a valid will?

Answer 8

1) testator must be 18 years old or emancipated and of sound mind
2) testator must have testamentary intent
3) testamentary capacity
4) meet VA’s formal requirements of due execution (attested /witnessed will)

Question 9

1) testator 18 yrs old

Answer 9

a testator must be at least 18 years old OR emancipated and of sound mind to make a will

Question 10

2) testator must have testamentary intent

Answer 10

the testator must have PRESENT testamentary intent; which means that the tester must:
(1) intend to dispose of property;
(2) intend for that disposition to happen at the time of death;
(3) intend that his instrument accomplish that purpose

Question 11

when is the testator’s PRESENT TESTAMENTARY INTENT ascertained?

Answer 11

testamentary intent must be ascertained from the face of the will. Any evidence of testamentary intent that appears on the face of the will is admissible to determine the instruments testamentary nature.

A deed that fails as an inter vivos conveyance cannot be probed as a will, even if it is singed and attested by the required number of witnesses because it lacked testamentary intent at the time of execution.

Question 12

can a promise to make a will in the future satisfy the testamentary intent?

Answer 12

no!!! A promise to make a will in the future does not satisfy this requirement

Question 13

3) testamentary capacity

Answer 13

a testators mental capacity is DETERMINED AT THE TIME of will execution

They must have the ability to understand
1) the nature and extent of their properyt
2) the persons who are the natural object of their bounty
3) the nature of the act they are performing; and
4) the way in which all of the foregoing concepts interact - such that they formulate a cohesive plan and orderly scheme of disposition

Question 14

4) meet VA’s formal requirements of due execution (attested /witnessed will)

Answer 14

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

4 formal requirements that must be satisfied in order to validly execute a will or codicil that is not entirely in the testator’s handwriting

Question 15

what are VA’s formal requirements of due execution?

Answer 15

1) will / codicil be in WRITING (some situations allow for oral wills - i.e. for sailors and soldiers)
2) will/codicil is SIGNED BY THE TESTATOR or by another in the testator’s presence and at their direction
3) there be 2 ATTEESTING WITNESSES
4) PRESENCE requirements must be satisfied
5) testator must sign the will (or acknowledge their previous signature on the will) in the WITNESSSE’S JOINT PRESENCE
6) the witness must sign IN THE TESTATOR’S PRESENCE, but not necessarily in the presence of one another

Question 16

2) testator’s signature

Answer 16

any mark affixed by the testator with the INTENT that it operate as their singature is sufficient

Question 17

testator’s signature - proxy signature

Answer 17

The testator may be assisted in signing their will. A proxy signature is acceptable so long as the proxy signs in the testator’s presence and at the testator’s direction.

Question 18

is there a specific order of signing?

Answer 18

The exact order of signing is not material, as long as all of the signings occurred as part of a single, continuous transaction.

Question 19

5) testator must sign (or acknowledge signature in will) in witness’s joint presence

Answer 19

In Virginia, the signing by the testator or the testator’s acknowledgment of the signature or of the will must occur in the joint presence of the witnesses.

Question 20

where must the signature be made?

Answer 20

Virginia does not require that a testator sign at the end of a will, but it must be manifest that the signed name is intended as a signature.

Question 21

witnesses’ signature

Answer 21

the will must be attested by 2 COMPETENT WITNESSES

Question 22

Competency of signing witnesses

Answer 22

The witnesses must be competent, meaning that AT THE TIME OF THE SIGNING, they are able to testify to the facts of the will’s execution in court.

The capacity in which a witness signs is irrelevant (for example, a notary’s signature may be counted as an attesting witness). There is no requirement that a witness sign the will at the end.

Question 23

presence requirements for witnesses

Answer 23

Although the witnesses must sign in the testator’s presence, Virginia does not require the witnesses to sign the will in each other’s presence.

Question 24

conscious presence test

Answer 24

The testator does not have to physically see the witnesses as they sign. Witnesses sign “in the testator’s presence” if the testator is aware of where they are and what they are doing, and if the testator could see them by a slight physical exertion on the testator’s part

Question 25

publication requirement?

Answer 25

Virginia has no publication requirement. The witnesses do not need to know they are signing a will, and the will is validly attested even if they thought they were witnesses to a different document, such as a deed or power of attorney.

Question 26

interested witnesses??

Answer 26

In many states, if a will beneficiary signs the will as an attesting witness, the will is valid, but the bequest to the witness-beneficiary
is void.

**Virginia has abolished this rule. In Virginia, a person is NOT disqualified as a witness to a will solely because of an interest in the will or the estate of the testator, and such a witness does not forfeit their interest.
**Note that the person named as executor can also be an attesting witness.

Question 27

Attorney Liability for Negligence—Privity of Contract Defense

Answer 27

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

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

Question 28

ATTESTATION CLAUSE

Answer 28

An attestation clause recites the elements of due execution.

Although not legally required, an attestation clause raises a PRESUMPTION that the will was validly executed and is prima facie evidence of the facts recited therein.

Question 29

will may be SELF-PROVED

Answer 29

A self-proving affidavit recites all of the elements to which the witnesses would testify in open court.

It is notarized by a notary public. Although it’s not required, a self-proving affidavit is useful and efficient because it can be SUBSTITUTED FOR THE WITNESS’S TESTIMONY.

It serves the same function as a deposition or interrogatory, and is accepted as if it had been given before the court.

Question 30

when can the FORMAL requirements be dispensed with?

Answer 30

VA has enacted a DISPENSING POWER STATUTE –> allows the court to dispense with formal requirements in certain cases

Question 31

what is the effect of the dispensing power statute?

Answer 31

(woudl allow a document that is not executed in full compliance with VA’s will execution statute to be treated as a validly executed testamentary instrument IF proponent establishes by CLEAR AND CONVICNIG EVIDENCE that the decedent INTENDED the document to constitute their will)

All interested persons must be made parties to a proceeding seeking to invoke the statute, which must be brought within one year after the decedent’s death.

Question 32

when must the dispensing power statute proceeding be brought?

Answer 32

All interested persons must be made parties to a proceeding seeking to invoke the statute, which must be brought within one year after the decedent’s death.

Question 33

what are the three most common mistakes in execution? (where dispensing power statute may not be able to be used)

Answer 33

1) no writing (most serious)
2) no signature by testator (2nd most serious)
3) defective witnessing (3rd)

Question 34

1) no writing (most serious)

Answer 34

The dispensing power cannot be applied to cure the failure of the will (or other testamentary instrument) to be in writing.

Question 35

2) no signature by testator (2nd most serious)

Answer 35

The statute cannot be used to excuse any requirement for the testator’s signature, except where:
a) There is a “switched will” case, and two persons mistakenly sign each other’s will (usually only effective if have identical terms), or

b) The testator signs the self-proving affidavit, but not the will itself.

Question 36

3) defective witnessing

Answer 36

The dispensing power statute will often be used to excuse defective witnessing.

A court may dispense with the requirement that there be two witnesses if there is CLEAR AND CONVINCING evidence that the decedent intended a document to be their will.

Question 37

what if a document is notarized but not witnessed?

Answer 37

Virginia does not allow notarization to substitute for witness attestation, but there is an argument here that the state dispensing power can be applied to save the will.

Question 38

what are conditional wills?

Answer 38

Conditional will expressly provides that aw ill or a clause in a will is meant to take effect ONLY IF a condition stated in the will happens

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

Question 39

how else could a conditional will be interpreted?

Answer 39

However, language that reads like a condition may be interpreted by the court as merely expressing the motive or inducement for making the will, meaning that the will can take effect even
if the stated circumstances do not occur.

Factors cited by the courts that tend to indicate a will is not conditional include formal execution of the will (showing that the decedent did not intend to die intestate) and the decedent’s preservation of the will.

Question 40

how do courts usually lean in regards to a conditional will?

Answer 40

courts generally probate a will and ignore the condition - and see it more as an inducement or motivation to draft the will - rather than a true condition

Question 41

what is a HOLOGRAPHIC will?

Answer 41

a holographic will is a HANDWRITTEN and UNATTESTED will/codicil

A holographic will or codicil can take any form: a letter, a thank-you card, a note written on a wall, or a provision scrawled on a cocktail napkin.

Question 42

what makes a valid holographic will?

Answer 42

they are recognized by VA provided they:
1) Meet the requirements for testamentary capacity (18 years old and of sound mind) and present testamentary intent;
2) Are wholly in the testator’s handwriting; and
— written on anythgin
— express testamentary intent
3) Are SIGNED by the testator

Such wills are liberally construed.

Question 43

does a holographic will have to be dated?

Answer 43

Virginia does not require this

Question 44

2) Are wholly in the testator’s handwriting;

Answer 44

The presence of typewritten text does not affect the validity of a holographic will if the typewritten portion may be disregarded without violating the testator’s intent.

However, if the handwritten portions are interwoven with or may only be understood by reference to the typewritten material, it is not a valid holographic will

Question 45

a) all handwritten portions considered

Answer 45

The court will consider all handwritten entries made by the testator on a document, and not only those portions of handwritten entries selected by the will’s proponent.

Question 46

b) Words Written by Another Person May Be Disregarded

Answer 46

Words written on a holographic will by someone other than the testator will be disregarded in the appropriate circumstances.

Question 47

signature must show finality of the instrument!

Answer 47

Technically, the testator need not sign a holographic will at the end.

However, if a holographic will is not signed at the end, there must be 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 48

could intestacy be an issue for holographic wills (if it is an incomplete disposition?)

Answer 48

**pay attention to whether or not any property will pas vis a vis intestacy

Question 49

can the ‘dispensing power statute’ be used to save a holographic will that does not include testator’s signature??

Answer 49

Because the finality of the instrument requirement involves the testator’s signature, the dispensing power statute CANNOT be used to save a holographic instrument that lacks such finality.

Question 50

oral wills - soldiers and sailors

Answer 50

Virginia recognizes oral wills for soldiers in active military service and mariners and sailors at sea.

These wills are valid for PERSONAL property only.

Question 51

proof of wills in pROBATE

Answer 51

When a will is offered for probate, the burden of proof is on the will proponents to show by a PREPONDERANCE OF THE EVIDENCE that the will was duly executed.

That is the only issue in probate; issues concerning construction are considered in other proceedings.

Question 52

ex parte probate

Answer 52

In ex parte probate, there is no notice to interested parties.

If the will is self-proved, attesting witnesses are not called because the court relies on the affidavit.

If it is not self-proved, the testimony of one witness is sufficient if the other witness is accounted for.

Within 30 days after ex parte probate, the personal representative must give written notice of the proceeding to the decedent’s heirs and other interested parties.

Any parties that wish to appeal to the circuit court have six months from the time the probate order is entered.

Question 53

inter partes probate

Answer 53

Inter partes probate is a full judicial proceeding with notice to interested parties and the right to a jury trial.

The procedures for proof of due execution is the same as ex parte probate, except that, upon motion of an interested party, the court may require the testimony of the attesting witnesses, even if the will is self-proved.

Question 54

holographic will - witnesses?

Answer 54

Two disinterested persons must testify that the will is wholly in the testator’s handwriting.

Question 55

Will Probated in Another State?

Answer 55

If a will is admitted to probate in another state and the decedent owned real and personal property located in Virginia, the will can
be admitted to probate in Virginia by filing an AUTHENTICATED COPY of the will AND the CERTIFICATE OF PROBATE.

It is assumed that the will is validly executed with respect to personal property.

If REAL property is involved, however, it must be shown that the will was validly executed under Virginia law, unless the will is self-proved under the laws of the other state, in which case it is conclusively presumed that the will was validly executed as to Virginia property.