11.5 Document Execution Ceremony

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

11.5 DOCUMENT EXECUTION CEREMONY

11.501 In General. The attorney should establish and follow a standard operating procedure for the execution of wills and other estate planning documents in his or her office. It may be possible to prove compliance with execution requirements by proof of the standard operating procedure if no one is able to recall the facts of a particular execution ceremony.

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11.502 Place of Execution.

A. Attorney's Office. The attorney's office is generally the best place for executing the documents. The standard office procedures can be followed, and the office provides a more solemn setting than the client's home or other location. As discussed above, the testator and all witnesses, ⁷⁸ as well as the notary for a self-proved will, ⁷⁹ should be in the room at the same time, preferably with the door closed.

B. Other Location. If it is necessary to sign the documents elsewhere, such as at the client's home or a hospital, the attorney should take extra care in following the formalities. If possible, persons not required to be present should leave the room while the execution formalities are handled.

11.503 Redetermination of Legal Capacity. Before starting the execution of the documents, the attorney must be satisfied that the testator has the required legal capacity at that time. ⁸⁰ Where a testator has marginal legal capacity, additional precautions should be taken during the execution ceremony, as set forth in paragraph 11.504(H) below.

11.504 Execution Procedure.

A. Securing Document Pages. The attorney should be sure that the pages of the documents are secured to each other by paperclip or staple before execution. Only the original of the will should be signed. ⁸¹

B. Interviewing the Testator. It is good practice to pose questions to the testator in the presence of the witnesses to demonstrate to the witnesses that the testator has the necessary capacity and intent. This is particularly true if the witnesses have not seen or spoken with the testator before the execution ceremony. ⁸²

C. Initialing or Signing Each Page. Many attorneys like to have the testator sign or initial each page of the will as additional protection

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against future alterations and also for identification purposes, although there is no legal requirement that this be done. ⁸³ The practice of initialing each page is a good one unless the client has difficulty in signing his or her name or there are other extenuating circumstances.

D. Last-Minute Changes. If possible, last-minute document changes should be avoided. If the client desires a last-minute change and it is possible to make that change on the word processor while the client waits, the attorney should be very careful that no other changes are inadvertently made in the document, such as dropping a line from the affected pages. If necessary, interlineations are permitted as long as they are done before execution of the document. ⁸⁴ The testator should acknowledge the interlineation in the presence of the witnesses, and both the testator and the witnesses should initial the interlineation. It is good...