Virginia Wills, Part 2: Making a Will
Wills are governed by state law, and every state has different rules. This post is about the rules in Virginia.
Who Can Make a Will?
To make a will, a person must have “capacity.” In Virginia, that means the person has to be at least 18 years old (or emancipated) and “of sound mind” at the time the will is signed. VA Code 64.1-47.
Being “of sound mind” means that, at the time of execution, the testator:
- - is capable of recollecting her property,
- - is capable of recollecting the natural objects of her bounty and their claims upon her,
- - knows the business about which she’s engaged, and
- - knows how she wishes to dispose of her property.
There’s also a capacity requirement to make a contract, but that requirements is different. The standard for contacts is higher, i.e., a person who can’t make a contract might still be able to make a will. A person under guardianship or conservatorship, for example, might not be able to enter into a contract; however, he/she might still be able to make a will.
Free from Undue Influence
There’s an additional requirement that comes into play when a will is being made. In order of a will to be valid, the testator must have acted without the undue influence of another. The kind of undue influence that invalidates a will is where someone else controls the mind and directs the actions of the testator. The testator must also be free from fraud, duress, etc.
Technically, this requirement isn’t part of the capacity requirement; it’s related to the validity of the will. But since it’s something to think about when making a will, I’m including it here.
What Makes a Will a Will?
It’s not fancy paper, sentences that never seem to end, or a sprinkling of “herebys” and “heretofores”. What makes a will a will is compliance with a set of rules called formalities or Wills Act formalities.
The Purposes of the Wills Act Formalities
The formalities serve several purposes:
- - to evidence that the document is actually the will of the testator,
- - to prevent fraud and undue influence,
- - to remind the testator of the solemnity of the act of making a will and prevent people from making wills too casually, and
- - to serve as a set of easy rules for courts to apply to determine whether some document counts as a will.
The are two main types of wills allowed in Virginia, holographic wills and witnessed wills, and the formalities are a little different for each.
Holographic wills are only permitted in some states, and Virginia is one of those states. In order to be valid as a holographic will, a will has to be written wholly in the handwriting of the testator and signed by the testator. Including the date on which the will was signed is probably also a good idea.
A witnessed will has to be signed or acknowledged by the testator in the presence of two competent witnesses. The witnesses have to be present at the same time, and they also have to sign the will in the presence of the testator.
When a witnessed will is offered for probate, at least one of the two witnesses have to appear and state under oath that the above formalities were complied with. Alternatively, a will can be “self-proving”. A will is self-proving is a special affidavit is property executed and attached to the will. Properly executing the affidavit requires a notary.
Here’s a diagram with an overview of the requirements:
A Cautionary Note
The requirements for executing a will are complicated. For many attorneys (myself included), the signing of wills is done in a short but carefully scripted ceremony. I’ve only outlined the basic requirements above. You should consult an estate planning attorney licensed in your state to ensure your will is properly drafted and executed.Tags: Essential Planning Wills