Articles
LITIGATION INVOLVING LAST WILL AND TESTAMENTS
In the Commonwealth of Virginia, a suit may be filed to attack the validity of a Last Will and Testament (the “Will”) after the Will has been admitted to probate. Generally, a suit to impeach or attack the validity of a Will must be filed within one year from the date of the order or judgment of the clerk or court admitting the Will to probate (a limited exception applies to interested parties who file actions to impeach a Will if such parties were under the age of eighteen years or of unsound mind at the time the Will was admitted to probate).
In the Commonwealth of Virginia, a person interested, and who is not a party to the probate proceeding, may file a suit to impeach a Will. Generally, anyone who has a bona fide claim to be regarded as a party in interest is entitled to bring such a challenge. Challenges to a Will are often brought by family members who were not included as beneficiaries of the Will but (i) were designated as beneficiaries of a prior Will, or (ii) would receive a share of the estate under laws of intestacy (which are laws directing the distribution of an estate in the event the decedent dies without a valid Will).
Issues which are often litigated in connection with a Will include whether the statutory requirements for executing the Will were satisfied and whether the creator of the Will (sometimes referred to as the “testator”) had testamentary capacity at the time of execution.
Statutory Requirements for Executing A Will
Challenges to whether the statutory requirements for executing a Will were satisfied often include (i) whether the statutory signature requirements were satisfied, (ii) whether the Will was properly witnessed, and (iii) whether any exceptions to the statutory requirements for execution of a Will were applicable.
In the Commonwealth of Virginia, those seeking to enforce a Will must show that all of the statutory requirements for due execution of the Will have been satisfied. Unless an exception applies, a Will must be in writing and signed by the testator, and the signature must be made or the Will acknowledged by the testator in the presence of at least two competent witnesses who are present at the same time, and such witnesses must subscribe the Will in the presence of the testator. A competent witness is an individual who is qualified to testify as to the facts of the Will’s execution. In the Commonwealth of Virginia, a beneficiary of a Will can be a competent witness.
A Will which is not signed by the testator may nonetheless be valid if the Will was signed by some other person in the presence of the testator and at the direction of the testator, in such manner as to make it manifest that the name is intended as a signature of the testator.
The execution of a Will may be proved by the testimony of one witness, but that witness must prove all the facts with regard to the due execution of the Will, and among them, that it was attested by two competent witnesses. In the alternate, a Will may be made self-proved by a self-proving affidavit which provides the acknowledgment of the Will by the testator and the affidavits of the attesting witnesses that the Will was properly executed, each made before an officer authorized to administer oaths under the laws of the Commonwealth of Virginia, in accordance with the statutory requirements for a self-proved Will.
In the Commonwealth of Virginia, if the Will is written wholly in the handwriting of the testator and signed by the testator (sometimes referred to as a “Holographic Will”), then it is a valid Will. If a Will is wholly in the handwriting of the testator, then the handwriting of the testator must be proven by at least two disinterested witnesses.
Exceptions to the Statutory Requirements for Executing a Will
A document or writing which does not satisfy all of the statutory requirements for due execution of a Will may be treated as if it had been executed in accordance with such statutory requirements if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s Will, (ii) a partial or complete revocation of the Will, (iii) an addition to or an alteration of the Will, or (iv) a partial or complete revival of his or her formerly revoked Will or of a formerly revoked portion of the Will. However, the above exception to the statutory requirements for due execution of a Will may not be used to excuse compliance with any requirement for a testator’s signature (limited exceptions apply where two persons mistakenly sign each other’s Will or a person signs the self‑proving certificate to a Will instead of signing the Will itself). In addition, the exception set forth in this paragraph is available only in proceedings brought in a circuit court, which are filed within one year from the decedent’s date of death, and in which all interested persons are made parties.
Testamentary Capacity
Challenges to whether the testator had testamentary capacity often involve issues in connection with the mental state of the testator at the time of the making and execution of the Will, such as (i) whether the testator was capable of understanding that he or she was executing a Will, (ii) whether the testator was capable of understanding the nature and extent of his or her property, (iii) whether the testator was capable of recollecting the persons who are the natural objects of his or her bounty, and (iv) whether the testator was capable of understanding how property would be distributed under the Will.
In the Commonwealth of Virginia, no person of unsound mind or under the age of eighteen years (unless emancipated) shall be capable of making a Will. If all statutory requirements for due execution of a Will have been shown, the testator is legally presumed to have had testamentary capacity at the time the Will was executed, and those contesting the testamentary capacity of the testator must produce evidence sufficient to overcome such presumption. It is assumed that if the witnesses were willing to subscribe to the Will, then the witnesses believed in the competency of the testator.
Evidence of sickness, impaired intellect, old age, and eccentricity, standing alone, may not be sufficient to render a Will invalid. Testators who were formally adjudged insane have been found to have had testamentary capacity at the time the Will was made and executed. In other instances, testators who were suffering from early Alzheimer’s disease or mild dementia at the time the Will was executed were found to have had the requisite testamentary capacity.
In determining the testamentary capacity of the testator, significant weight is often attached to the testimony of the draftsman of the Will, of the attesting witnesses, if any, and of any attending physicians. However, if an attesting witness later impeaches the testamentary capacity of the testator, such testimony is often viewed and weighed with caution. In addition, the testimony of the attesting witnesses may be of less significance if the witnesses had no previous acquaintance with the testator and nothing was said or done by the testator at the time of execution to indicate the testator’s then mental condition.
© 2010 GANDERSON LAW, P.C.