Almost a Will?

by M. Bradley Brickhouse

Virginia traditionally recognizes two ways in which a will may be validly executed. First, a will may be in writing and signed by the testator and at least two competent, present witnesses. Second, a will may also be valid if it is holographic. For a holographic will to be valid in Virginia, it must be entirely written and signed by the testator in the testator’s own handwriting.

Prior to 2007, Virginia required these strict formalities for executing a document in order for it to be considered a valid will. In 1990, the Joint Editorial Board for the Uniform Probate Code (UPC) proposed revisions to the UPC by adding UPC § 2-503, commonly known as the “dispensing with formalities provision.” This section allows courts to treat a document or writing not in strict compliance with the execution of a will under UPC § 2-502 as if it had been executed in compliance with UPC § 2-502, if it can be shown that the document or writing is a genuine expression of testamentary intent of the decedent. To prove that the document or writing is genuine it must be established by clear and convincing evidence that the decedent intended the writing to be a will, a revocation of a will, an alteration to a will, or a revival of a formerly revoked will.

In 2007, the Virginia General Assembly adopted the UPC’s dispensing with formalities provision by passing Virginia Code § 64.2-404. This section mirrors the UPC’s position, and provides Virginia courts with the power to treat documents and writings that are not in strict compliance of Virginia Code § 64.2-403 to be treated as validly executed, if, within one year of the testator’s death, it is established by clear and convincing evidence that the author intended the document or writing to constitute the author’s will, a revocation of a will, an alteration to a will, or a revival of a formerly revoked will.  The document must also be signed by the author.

Oast & Taylor attorneys have used the dispensing with formalities provision of the Virginia Code to successfully probate several documents, thus permitting the intentions of the testators to be followed as though their wills had been properly executed.

In one case, a woman who wanted to leave her estate to her long-time boyfriend used a form that she obtained from a co-worker to accomplish this goal.   She discussed her desire with members of her family, and after signing the document, she placed it in an envelope and gave it to her family. After the woman’s death, the envelope was opened and it was discovered that the document she had typed and signed was not properly witnessed. Initially, the family was not allowed to probate the will because it did not meet the statutory formalities required by Virginia law. As her family knew that it was the woman’s intention to leave her estate to her boyfriend, The Oast & Taylor attorney filed a petition in the circuit court on his behalf. The court found by clear and convincing evidence that the woman had intended the document to be her will, allowed it to be admitted to probate, and honored her intentions to leave her estate to her boyfriend.

In another case, a married couple executed professionally drawn wills in compliance with the Virginia Code. Each spouse had children from previous marriages and both of their wills directed that upon the death of the second spouse, all property be split equally among their seven children. After the husband’s death, the wife revoked her prior will and executed a new professionally drawn will in compliance with Virginia Code § 64.2-403 that devised her entire estate to her three children. After signing her new will, the widow typed a document that she later signed, bequeathing specific personal property and directing that her real property be sold and divided among the seven children. The typed document could not be admitted to probate because it lacked two witnesses and therefore was not in compliance with the Virginia Code § 64.2-403. The Oast & Taylor attorney filed a complaint in the circuit court on behalf of the deceased husband’s four children asking the court to treat the document as if it had been executed in compliance with the Virginia Code. The court found by clear and convincing evidence that the testator had intended the document to be a partial revocation of and an alteration to her last will and testament and allowed the document to be admitted to probate.

While the better solution is to talk to one of Oast & Taylor’s estate planning attorneys to ensure that your wishes are properly documented and in compliance with all Virginia law, these examples demonstrate that Virginia Code § 64.2-404 can provide opportunities to comply with a testator’s intention, even if the last will and testament does not strictly comply with formalities.