11.4 Proof of Execution of Wills

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

11.4 PROOF OF EXECUTION OF WILLS

11.401 In General. If the will was properly executed, there should not be any problems when the will is offered for probate after the testator's death. The proponents of a will have the burden of proof to show that the will was executed in accordance with the requirements of section 64.2-403 of the Virginia Code. ⁶⁵ Every reasonable presumption should be made in favor of finding proper execution of a will. ⁶⁶

11.402 Self-Proving Wills.

A. In General. As a practical matter, many of the problems associated with proving the proper execution of a will at probate have been remedied by the use of self-proved wills and the self-proving affidavit under sections 64.2-452 and 64.2-453 of the Virginia Code.

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A will may be made self-proved by the acknowledgment of the will by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths in Virginia and evidenced by a certificate attached or annexed in the form set forth in section 64.2-452. ⁶⁷ If the sworn statements of the witnesses are taken in this manner, they will be accepted by the court as if they had been taken ore tenus before the court. ⁶⁸

A codicil with a self-proving affidavit under section 64.2-452 will have the effect of making the will itself be a self-proved will (even if it was not originally done that way), as long as the codicil expressly confirms, ratifies, and republishes the prior will. ⁶⁹

B. Complying with Self-Proving Procedure. Section 64.2-452 sets out the steps for creating a self-proved will and should be followed carefully. Ideally, the attorney should have the notary actually swear in the witnesses and then have the testator declare to the notary and the witnesses that the instrument is the testator's last will and testament, that the testator has willingly signed or directed another to sign it for him or her, and that the testator has executed it in the presence of the witnesses as a free and voluntary act for the purposes expressed in the document. The witnesses should then be asked to state that the will was executed and acknowledged by the testator in their presence as the testator's last will and testament and that they, in the testator's presence and at the testator's request and in the presence of each other, subscribed their names as attesting witnesses on that date. ⁷⁰

C. Consideration in Selecting the Notary. The attorney should be aware of any potential for conflict of interest in the selection of the notary to handle the execution of the will and other estate planning documents. Section...