5.13 Wills and Estates

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

5.13 WILLS AND ESTATES

5.1301 Testamentary Capacity. In Parish v. Parish, ⁷¹ although the will was executed in Tennessee, the Virginia Supreme Court applied Virginia law to determine testamentary capacity.

[Page 525]

5.1302 Construction and Effect of Will. The operative effect of a will and its construction as to personalty is governed by the law of the testator's domicile, but as to the disposition of real estate, or the creation of any interest therein, the law of the place where the property is situated at the time of the testator's death governs—that is, the lex loci rei sitae. ⁷²

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Notes:

^[71] 281 Va. 191, 199, 704 S.E.2d 99, 104 (2011) (citing Poole v. Perkins, 126 Va. 331, 336, 101 S.E. 240, 242 (1919)) (recognizing exception to Virginia's lex loci rule for issue of capacity); see also Rochester v. Rochester Corp., 316 F. Supp. 139, 140 (E.D. Va. 1970), rev'd on other grounds, 450 F.2d 118 (4th Cir. 1971); Restatement (Second) Conflict of Laws §§ 239(d), 244(h) (1971)).

^[72] Rinker v. Trout, 171 Va. 327, 334, 198 S.E. 913, 916 (1938) (citing Smith v. Smith's Ex'r, 122 Va. 341, 94 S.E. 777 (1918); Harrison on Wills & Administration § 191; 69 C.J. 47).