Virginia has specific code sections that discuss the validity of last will and testaments. Some of the most common requirements are that a last will and testament has to be signed by the testator and witnessed by two independent witnesses and the testator must have the required testamentary capacity to complete the last will and testament. In order to make sure that the legal validity of a will in Virginia is correct, a person should get the help of a Virginia wills attorney before submitting it.
An individual, to sign legal documents, including a last will and testament, should be over the age of 18. There are a number of other reasons like an individuals age that make a will be considered invalid. A will may be considered invalid if:
- It was not executed properly
- The decedent lacks the testamentary capacity to create the last will and testament
- There is something that suggests that the testator intended to avoid or revoke the last will and testament, such as the creation of a new last will and testament or some indication on the document itself.
There are a number of reasons that a will may be considered invalid and these are just the most common few. A last will and testament does not lose its legal validity in Virginia unless the testator revokes it. If a testator revokes the document or makes markings on the document that rise to the level of a revocation in the court’s perception, those actions could result in the will being invalid.
A testator has to have the required Virginia testamentary capacity to be able to execute a last will and testament. The testamentary capacity is often judged by a number of different factors, including that the testator must:
- Know who their family is
- Know the nature and the amount of their assets
- Be able to read the last will and testament or have a last will and testament read to them, and
- Understand what the document does in order for the document to be valid
What is Included in the Will
Commonly, individuals think a last will and testament has to recite every piece of property or article of property for it to effectively distribute those assets. Generally, last will and testaments include clauses that are broad that incorporate all of the decedent’s assets. The listing of specific assets may not be necessary to affect the distribution of those assets at death.
For example, individuals may choose to mention specific items, and while that is fine, other individuals simply say they want all of their tangible items inclusive of all of their jewelry to be distributed to their children or someone specific. Often, last will and testaments may not name specifically every item that an individual would like to be distributed, but rather, those items are lumped into bigger or broader distribution provisions.
Witness and Affidavit Requirements
The Commonwealth of Virginia requires witnesses to be present at the signing of wills and to sign a document.
Witnesses are generally disinterested in the last will and testament, meaning they are not named to serve in a fiduciary capacity or beneficiary of the last will and testament. Often, the attorney’s office provides witnesses and notaries that are over the age of 18 and disinterested to the document to sign the last will and testament.
While there is no affidavit requirement for a last will and testament in the Commonwealth of Virginia, probate is easier when the last will and testament includes a self-proving affidavit. A self-proving affidavit is different than the traditional definition of an affidavit, but it does make the administration of the will much easier if a self-proving affidavit is included.