11.3 Legal Requirements for Execution of a Will

• Library: Estate Planning in Virginia (Virginia CLE) (2018 Ed.)

11.3 LEGAL REQUIREMENTS FOR EXECUTION OF A WILL

11.301 Legal Capacity of the Testator.

A. In General. Virginia law requires that the testator have legal capacity and that certain mechanics of execution be followed in order for there to be a valid will. To have legal capacity, the testator must be a person who is authorized under Virginia law to sign a will and who has the necessary testamentary capacity and intent. It is important to understand the distinction between testamentary capacity and testamentary intent and to be sure that both exist at the time the will is signed. ³ In cases of marginal testamentary capacity, there are some special safeguards to take at the time of document execution. ⁴

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B. Capacity to Make a Will. Section 64.2-401 of the Virginia Code states that any person may make a will unless prohibited from doing so under that section. There are two types of persons who cannot make a will: (i) those under the age of 18, and (ii) those of unsound mind.

C. Testamentary Capacity.

1. In General. A person does not have the testamentary capacity (mental competency) to make a will if he or she is of unsound mind. The Virginia Code does not define "unsound mind," but case law has provided some guidance on this matter.

The test for capacity requires the testator to know certain things at the time he or she executes the will. Basically, a testator is deemed to have capacity to make a valid will if the testator (i) understands that he or she is executing a will; (ii) is capable of recalling the property that he or she intends to dispose of; (iii) is capable of recalling the objects of his or her bounty (heirs, etc.); and (iv) knows the manner in which he or she wishes to distribute the property among those persons. ⁵

The testator need not have the same perfect and complete understanding and appreciation of these matters, in all their bearings, as a person in sound and vigorous health of mind and body would have; nor is he required to know the precise legal effect of every provision made in his will. ⁶

2. Ability to Form Testamentary Plan. The testator must be able to form a testamentary plan, which requires the ability to interrelate the four testamentary capacity requirements cited above for a sufficient length of time to form some rational judgment in relation to them. ⁷

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3. Timing of Requirement of Testamentary Capacity. Testamentary capacity is only required at the moment the will is executed. ⁸ As long as the testator is capable at the time of execution, the testator's capacity before or after the execution of the will is immaterial. ⁹

4. Specific Factors.

a. Old Age. The age of the testator does not, in and of itself, make the testator ineligible to make a will.

The law prescribes no limit in point of age beyond which a person cannot dispose of his property. A man of 89 years of age is often as capable of making a deed or will as at any other period of his life. The greatness of his age is not proof of mental incapacity. ¹⁰

b. Eccentric Behavior. Eccentric behavior or character is also not inconsistent with testamentary capacity. ¹¹

c. Sickness or Mental Distress. Illness or emotional distress of the testator does not render the testator incapable of making a will. ¹²

d. Conservatorship. A person is not necessarily incapable of making a will even if he or she is not able to handle other business affairs and there is a court-appointed conservator, or a competency hearing is

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pending, at the time the will is signed. ¹³ The general rule is that the record of proceedings for the appointment of a conservator is relevant evidence to be weighed with other evidence in determining testamentary capacity. ¹⁴

e. Insanity. Even if a person has been adjudged insane, he or she may still be capable of making a will.

A party may have been adjudged insane, yet to make a valid will the law only requires that at the time of composing and executing it, he be factually so far free of his affliction that the ordinary legal consequences of his insanity do not apply to what he is then doing. What his mental status is at the time he makes and executes the will is the controlling factor. ¹⁵

5. Burden of Proof. The burden of proving the existence of testamentary capacity is on the person offering the will for probate, who must prove this by a preponderance of evidence. ¹⁶ The proponent becomes entitled to a presumption of testamentary capacity by proving compliance with all statutory requirements for valid execution. ¹⁷ Once the presumption has been established, the contestant must proffer evidence to overcome the presumption, although the burden of persuasion remains upon the proponent. ¹⁸

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6. Comparison of Capacity Standard to That for Other Legal Documents.

a. In General. Technically, there are different legal standards applied for determining capacity depending on the type of document signed, although in practice judges and juries may not appreciate these subtle differences.

b. Trust Agreement. The Uniform Trust Code provides that "the capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will." ¹⁹

c. Deed. A person is competent to execute a deed if he or she can understand the nature of the intended transaction and assents to its provisions. ²⁰

d. Contract. A person must understand the nature and consequences of his or her act at the time of the contract transaction and must not be impaired by reason of mental illness or defect to such an extent that the person cannot act in a reasonable manner in relation to the transaction, or else the contract may be voidable. ²¹ Furthermore, inadequacy of consideration, in combination with diminished mental capacity, may make a contract subject to rescission even though the signer technically was legally competent. ²²

e. Augmented Estate Claim. A surviving spouse is competent to execute a notice of claim if he or she understands the right to elect against the will and receive a share of the estate, even if he or she doesn't understand the amount involved. The Virginia Supreme Court distinguished the level of competency required to make this claim from the capacity to

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make a contract or deed. ²³ With changes to Virginia's augmented estate statutes, a conservator or an agent under a durable power of attorney may now exercise the right of election for a surviving spouse who is incapacitated if the decedent died on or after January 1, 2017. ²⁴

7. Ethical Considerations in Dealing with a Marginal Testator.

a. In General. An attorney assisting a client with marginal capacity may face several ethical issues arising from different parts of the Rules of Professional Conduct.

b. Zealous Representation. Obviously, an attorney will want to avoid professional liability for representing a client who does not have the capacity to enter into an attorney-client relationship. On the other hand, the attorney will want to help avoid the expense and other complications of some type of judicial determination of lack of capacity. ²⁵ An attorney has a duty to maintain as normal an attorney-client relationship with the marginal client as is reasonably possible.

c. Confidentiality. While it may be advisable for the attorney to obtain information and even a written opinion from the client's attending physician that the client has legal capacity, the attorney must recognize and be sensitive to issues of privacy and confidentiality. ²⁶ These issues also arise if the attorney decides to interview roommates or attending nurses to discuss and document competency. ²⁷

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d. Conflict of Interest. Before the documents are signed, the attorney should have talked with the testator without anyone else present. The attorney needs to separate himself or herself from the primary beneficiaries, so that there is no question that the testator is the client. ²⁸

8. Comparison of Challenge to Testamentary Capacity with Claim of Undue Influence. A determination of lack of testamentary capacity should be distinguished from a challenge to a will on the basis of undue influence. Before a will can be set aside on the grounds of undue influence, which is a species of fraud, clear and convincing evidence must be shown that the influence was sufficient to destroy free agency on the part of the testator. ²⁹ To raise a presumption of undue influence, there must be clear and convincing evidence that either (i) the testator was enfeebled in mind and there were suspicious circumstances shown or (ii) there was a fiduciary or confidential relationship accompanied by activity on the part of the dominant party in procuring or preparing the will in his or her favor. ³⁰

D. Testamentary Intent. To make a valid will, the testator must also have testamentary intent, but this is separate from the issue of testamentary capacity. Testamentary intent means that the testator must intend that the paper he or she is signing be a will. ³¹

In Virginia, the determination of whether the face of an instrument contains evidence of testamentary intent is a matter of law to be decided by the trial court. ³² While some evidence of testamentary intent must

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appear on the face of the document itself before the document can be held to be a valid will, ³³ once this evidence is established, extrinsic evidence may be admitted to establish or refute the testamentary nature of the document. ³⁴

11.302 Statutory Requirements for Execution of Will. ³⁵

A. Signing.

1. In General. Section 64.2-403 of the Virginia Code states that

A. No will shall be valid unless it is in writing and signed by the testator, or by some other person in the testator's presence and by his direction, in such a manner as to make it manifest that the name is intended as a signature.

B. A will wholly in the testator's handwriting is valid without further requirements...