Requirements to Execute a Will

In order for a will to be valid, it must be executed by a person (also known as a testator) who has the mental capacity to understand the document, what assets they are giving away in the will, and to whom they are giving the assets. While these are critical components of establishing a valid will, there are also certain technical requirements that must be met before a will can be legally executed.

Executing a Will

It is essential to make sure that all requirements are met when executing a will. If these requirements are not met, then the will may be deemed invalid and your estate may revert to the laws of intestate succession. Intestate succession, or intestacy, is when a decedent’s assets are distributed according to the laws of the Commonwealth of Virginia, rather than their wishes and desires as stated in a will. Regarding the technical requirements of a will, there are two main requirements:

1. It must be a document in writing; and
2. It must be signed by the testator.

With those two general requirements in mind, Virginia law makes three further clarifications:

1. If the document is not signed by the testator, it may be signed by some other person in the testator’s presence at the testator’s direction, in such a manner to make it clear that the name is intended as the testator’s signature.
2. If the will is wholly handwritten by the testator, then it must be signed by the testator and proved by at least two disinterested witnesses.
3. If a will is typed, or only partially in the testator’s handwriting, then it must be signed or acknowledged by the testator in the presence of at least two competent witnesses who are present at the same time and who also sign that they witnessed the testator execute the will.

Exceptions to the Requirements

With that being said, there are situations, albeit rare, where the technical requirements of a will execution may be overlooked. Per Virginia Code § 64.2-404, if a document was not executed in a way that complies with the above requirements, it should still be valid 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 formerly revoked will or of a formerly revoked portion of the will."

This exception generally exists to cure situations where a mistake is made in executing a will. For example, if two people (i.e., husband and wife) mistakenly sign each other’s wills.

Looking for a Will Contest Attorney in Virginia?

When someone dies, their estate generally must go through the probate process. This process can be complicated, and it can be made even more complex if there is a dispute over the deceased person’s will. If you are looking to contest a will, the experienced attorneys at Obenshain Law Group can help. We understand the ins and outs of probate law, and we know how to navigate the complexities of will contests.

If you believe you have grounds to contest a will, contact us at (540) 318-7360 to schedule a free initial consultation.