What Constitutes a Valid Will in Virginia?

Recently, a court in France ruled that a text message sent shortly before a man’s death in 2016 altering his will was not enforceable. The court decided that a text message altering the terms of a legally executed will cannot be verified, and so is not considered a valid will. However, a court in Australia found the opposite to be true in 2017, in part because the deceased man used the words “my will” in the text message. These conflicting messages raise the question: what constitutes a valid will in Virginia?

A Valid Will in the Commonwealth of Virginia

In Virginia, the requirements for a valid will are fairly strict. If a will does not meet all of the requirements for the valid creation and execution of a will laid out in Virginia statute, the document will be considered invalid. If a will is deemed invalid, the deceased person’s estate will become subject to the Virginia laws of intestacy, as if there had not been a will.

In Virginia, the person drafting a will is referred to as the “testator,” and he or she must meet all of the following requirements in order to execute a valid will:

1. Age

The testator must be at least 18 years old.

2. In Writing

For a will to be valid in Virginia, it must be in writing. The law does not require a specific format for a “written” document, however, an oral last request is not sufficient in Virginia.

3. Signed by the Testator

The testator may sign using any mark, and if the person is physically unable to sign, it is permissible for someone to assist the testator in signing the will. However, the person signing on the testator’s behalf may not be one of the witnesses to the will, and they must sign in the presence of the testator and at the express direction of the testator.

4. Competent

A testator must be sufficiently competent (of sound mind and memory) at the time the will is executed. If someone has been deemed incompetent in an earlier court proceeding, this may preclude him or her from meeting this requirement, although that is not always the case. If the person has symptoms of Alzheimer’s or some other cognitive decline, this does not automatically preclude the person from being able to execute a valid will. In each of these cases, the probate court would look at each circumstance carefully to make a determination about competency.

5. Voluntarily and of Their Free Will

There cannot be any evidence of duress or coercion when a will is being created or executed. A will made under pressure or coercion is not valid in Virginia.

6. Minimum of Two Witnesses

For a will to be valid in Virginia, it must be signed by a minimum of two witnesses. Witnesses may not be beneficiaries of the will.

7. Self-Proving Affidavit Not Required, but Recommended

Testators may choose to attach a “self-proving affidavit” to the will that affirms that the will was properly executed. This affidavit should be signed by the testator, the witnesses, and a certified notary public in the Commonwealth of Virginia. Without a self-proving affidavit, when the testator passes, one of the witnesses will need to be located, and he or she would need to sign “Interrogatories to Witness to Will,” in which the witness attests to the validity of the will. The witness may also be required to appear in court to give testimony under oath that the will is valid. A self-proving affidavit avoids all this and can expedite the probate process.  

8. Holographic Will, Exception

A “holographic” will is one that is handwritten. The Commonwealth of Virginia does allow a handwritten will to be enforced. In fact, a will that is fully handwritten in the testator’s hand, and then signed and dated by them does not need to be witnessed to be effective.

Altering an Existing Will

Once a will has been drafted and executed in accordance to Virginia statute, it is possible to make changes and alter a will. However, these changes will need to be made in accordance with certain requirements. A “codicil” is the act of revoking or amending a portion of a will. A codicil should be written, signed, dated, and kept with the original will documents. Simply making alterations on the face of the existing will -- or sending a text message to that effect -- will likely not hold up in a Virginia court.

Contact an Experienced Estate Planning and Probate Attorney

When determining the validity of a will, it is recommended to seek the advice of an experienced legal professional. At Wakefield Law, our estate planning attorneys can provide assistance on this topic from every angle: from drafting a valid will from scratch to updating and altering an existing will. Give us a call at (703) 771-9740.