Fraud in Virginia Wills
A will is a legal document that allows you to state your wishes regarding the disposition of your estate after you pass away. Fraud in Virginia wills is a concern for both the testator and beneficiaries of the will. If you want to know more about fraud within the context of wills, consult a skilled wills attorney that could answer your questions.
Fraudulent Execution of a Will
If a will has been fraudulently executed, it may become invalidated during a will contest proceeding. An invalidated will not only make the testator’s wishes unclear, but it can also lead to lengthy litigation.
A will may be fraudulent as a result of:
- Forged signatures
- Undue influence
- Lack of Capacity
A will is fraudulently executed if it was signed by anyone other than the testator unless that person is signing it in the testator’s presence at their direction (see Virginia Code Section 64.2-403).
Virginia law does provide some safeguards to prevent fraud in Virginia wills, specifically, fraudulent signatures. In Virginia and most other states, wills are required to be signed in the presence of two subscribing witnesses. If the validity of a will ever comes into question, the witnesses can be called upon to testify about the execution.
Having a will notarized can also help to ensure its authenticity. When someone signs their will before a notary public, the notary will properly identify you and the witnesses to make sure the people signing the document are legitimate.
Lack of Capacity
To execute a valid will in Virginia, a person must be of sound mind (see Virginia Code Section 64.2-401). If a person is able to understand the purpose of signing a will and the nature of their property and family members, they may have the mental capacity to sign a will. In Virginia, the capacity they need to sign a will is lower than the capacity needed to enter into other contracts.
If a person is not of sound mind when they sign their will, it could be invalidated. Since the level of capacity needed to sign a will is relatively low, it can be difficult to prove lack of capacity in court. The court will evaluate all of the individual facts and circumstances in a lack of capacity case.
If a person does not voluntarily sign their will as a result of undue influence, the will could also be invalidated. Undue influence occurs when the testator is so persuaded by another person that their actions cease to be a result of free will. The elderly population, in particular, is quite susceptible to undue influence.
A person could be a victim of undue influence if they suddenly cut off communication with family members and make significant changes to an existing will. If the newly added beneficiary had an opportunity to exercise significant control over the testator, this can be an additional indication of undue influence.
A will signed as a result of undue influence may be determined by the court to be partially or entirely fraudulent. Similar to a case involving alleged lack of capacity, the court’s decision regarding undue influence will depend on the specific facts of each case.
If you believe that someone is a victim of fraud in Virginia wills or you would like to file a will contest, please contact a skilled attorney to schedule a consultation.