Execution of Wills

Question 1

Execution of Wills - Attested will

Answer 1

Requirements:

o In writing
o Signed by the testator, or by a proxy at the testator’s direction and in her presence
o Testator must either sign the will (any mark intended to be a signature will count) or acknowledge the will in the presence of at least two competent witnesses, present at the same time (order and placement of signatures immaterial), and
o The witnesses must sign the will in the presence of the testator, but do not need to sign in each other’s presence

Question 2

Virginia Witnesses with Interests?

Answer 2

A witness is not rendered incompetent by reason of any interest in the will/estate of the testator

Question 3

Conscious presence test in VA

Answer 3

Witnesses are “present” as long as the testator is aware of their presence and what they are doing, and would be able to see them if she tried

Question 4

Republication by codicil

Answer 4

Codicil—an amendment to a prior will that must be executed with will formalities; deemed to re-execute a will, even a revoked will, at the time of the codicil

Date of last codicil governs whether children and spouses are protected under the omitted child and spouse provisions

Question 5

Incorporation by reference

Answer 5

Documents not present when the will is executed can become part of the will if:
o Existed at the time of the will;
o Will indicates that it is a paper in existence at that time; and
o Identified and described with reasonable certainty in the will.

Question 6

Incorporation by reference - Tangible personal property

Answer 6

A written statement or list (e.g., “gift list” or “legal list”) can be used to dispose of tangible personal property; does not need to be executed with will formalities; can be prepared or amended after the will is executed; requirements:
o The will must refer to the writing;
o The writing must describe both the items of personal property and the identity of the recipients with reasonable certainty;
o The writing must be signed by the testator; and
o The property must not otherwise be devised in the will.

Question 7

Holographic wills

Answer 7

1. Formal requirements—wholly in the testator’s handwriting, signed by the testator, and manifest testamentary intent; two disinterested witnesses must identify the handwriting as the testator’s when the will is offered for probate
2. Words not in testator’s handwriting—typewritten words or slight alterations do not automatically invalidate it; handwritten words must stand alone as a holographic will
3. Testamentary intent—the will must, on its face, express testator’s testamentary intent

Question 8

Harmless error

Answer 8

• Document failing requirements of an attested or holographic will—only probated if the proponent establishes by clear and convincing evidence that the decedent intended the document to constitute her will
• Testamentary intent may be established by extrinsic evidence, if clear and convincing
• May not be used to excuse compliance with any requirement for a testator’s signature, unless
  (i) two persons mistakenly sign each other’s will, or
  (ii) person signs a self-proving certificate to a will instead of the will itself

Question 9

No “Negative” Will

Answer 9

Cannot disinherit heirs at law without giving property to someone else; may execute a testamentary instrument that appoints executors without distributing property

Question 10

Revocable trust

Answer 10

Not subject to the requirements for executing a will; does not pass through formal probate

Question 11

Pour-over trust

Answer 11

A testator may devise probate assets to a pour-over trust, without satisfying the rules for incorporation by reference, if:
(i) the trust is sufficiently identified in the will, and
(ii) the trust terms are set forth in a written instrument other than the will

Question 12

“Transfer on death” deed

Answer 12

Can specify a beneficiary who will receive the real property at the owner’s death; must be recorded in the circuit court where the property is located; divorce or annulment revokes transfer to former spouse unless deed expressly provides otherwise

Question 13

Contracts relating to wills

Answer 13

• Contracts to give property by a will are enforceable if a valid contract
• Courts enforce oral agreements to devise real property when:
  o Agreement is certain and definite, established by clear and convincing evidence
  o The party seeking enforcement performed pursuant to the agreement, and
  o Failure to enforce the agreement would work a fraud on the party seeking enforcement
• Will not infer contractual wills solely from reciprocal provisions
• Constructive trust imposed on subject property to ensure performance
• When a contract to make a will is unenforceable, a party can seek quantum meruit