5.3 Last Will and Testament

• Library: Elder Law in Virginia (Virginia CLE) (2021 Ed.)

5.3 LAST WILL AND TESTAMENT

5.301 Testamentary Capacity. No person of unsound mind or under 18 years of age, unless emancipated, ¹⁷ can make a last will and testament ("will"). ¹⁸ "Neither sickness nor impaired intellect is sufficient, standing alone, to render a will invalid" on the grounds of mental incapacity of the testator. ¹⁹ Weakness of understanding alone is insufficient to show mental incapacity to make a will, ²⁰ and weakness of intellect alone is likewise insuf-ficient. ²¹ The testator need not have "all the force of intellect which he may have had at a former period." ²²

In order to make a will, a testator must be capable of "recollecting her property, the natural objects of her bounty and their claims upon her, [knowing] the business about which she [is] engaged, and how she wishe[s] to dispose of her property." ²³ The testator must have testamentary capacity at the moment when he or she executes the will. ²⁴ The testimony of witnesses as to the mental capacity of the testator at the time of the execution of the will carries great weight for determining the testator's capacity. ²⁵

5.302 Incapacitated Adult with Testamentary Capacity. Even if an individual has been adjudicated to be incapacitated, ²⁶ the Virginia Supreme Court has clarified in a series of cases that an incapacitated adult may retain sufficient testamentary capacity to execute a will. The appointment of a guardian is not prima facie evidence of incapacity to make a will. ²⁷ "Adjudications of incompetence [do] not invoke a presumption that [the testator] lacked capacity. . .[however,] clear and convincing proof of capacity [is

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necessary] to overcome a presumption of insanity when the testator previously was adjudicated insane." ²⁸

An individual under a guardianship is not automatically deprived of the power to make a will. Mental weakness is not necessarily inconsistent with testamentary capacity. A lesser degree of capacity is required to create a will than to execute a contract and transact ordinary business. An individual can be capable of making a will yet incapable of disposing of his or her property by contract or of managing his or her estate. ²⁹ "If at the time of [the execution of her will] the testatrix was capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wished to dispose of her property, that is sufficient [testamentary capacity, even if she is under a conservatorship]." ³⁰

5.303 Unnatural Dispositions. The fact that the terms of an individual's will are eccentric or not in accordance with a "normal" disposition (that is, in conformity with the intestacy statute) of the person's estate does not alone make the will invalid. "If a man be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as a reason for his actions." ³¹ "Where a testator has [the] legal capacity to make a will, he has the legal right to make an unequal, unjust or unreasonable will." ³² "And if it be said that he omitted to mention one who might have been expected to be the natural object of his bounty, the reasons therefor may be shown, be they good...