LibGuides: Virginia Probate Law by Christopher Taylor: Cases

What is undue infuence and how do I avoid it?

Weedon v. Weedon, 283 Va. 241, 720 S.E.2d 552, (2012)

I this case, several estranged children wished to challenge the will of thier mother after she left everything to a "favored child." One of the claims was that the "favored child" put undue influence on the mother. This meant that the estranged children were saying that the "favored child" forced, threatened, tricked, manipulated, etc. the mother into writing a will that did not truely reflect the true wishes of the mother. The court ended up saying that the will was fine and that the favored child did not unduely influence the mother because the standard of "clear and convincing evidence" (75% sure) was not meant in terms of proving that the "favored child" tricked the mother into doing it her way.

So what?

If your will is writen such that it alienates or leaves out or fails to provide for someone who an average person might expect you to provide for (i.e. you leave nothing for your wife, or you dont leave anything for one of your children) then the left out survivor might challnge the will. He/She might claim that someone forced, tricked, manipulated, or bullied you into not providng for them thus the court should not honor your wishes stated in your will because they really aren't your wishes.

So...

Consider a preamble to your will or an introductory paragraph that states who and why your giving your stuff to. Perhaps you include a sentence in each devise stating why you elect to give this item to that person. Maybe you give a very small amount to that person and state why you elect to do that. When executing the will, try to have neutral or unbaised witnesses, and don't let anyone suggest to you or whomever is writng the will for you what to say or how much to give etc. Make sure your choices are your choices and that your will reflects your choices. Perhaps record the drafting process.

[For example]

"i give $1,000 to son A because he is successful and doesn't need my money."

"i give $10,000 to son B because he is struggling and needs the money"

What if witnesses don't actually sign my will?

Hampton Rds. Seventh-Day Adventist Church v. Stevens, 275 Va. 205, 657 S.E.2d 80, (2008)

In this case the family of and the church of the testator had a dispute as to the validity of the most recent will as it was executed. The debate came down to whether or not the printed names of witnesses without thier signatures was sufficent to amount to the witnesses signature requirement imposed by the statute. The court said that while typicaly it would not be, in this instance, the self-proving affidavit signed by the testator after the printed names of the witnesses. The affidavit verified the will and it was admitted to probate?

So what?

Certain exceptions apply to the code and provide certain options in lieu of what appears to be mandated by the code section.

So...

When drafting your will, consider incorporating ever available method to prove the validity of your will.

How important is the execution formalities to my Will?

French v. Beville, 191 Va. 842, 62 S.E.2d 883, 1951 Va. LEXIS 141 (Va. 1951)

In this a case irregularites in the execution did not surpass the clear evidence of the document being the true illustration of the testators final intent.

So…

While the execution formalities are not required by law, they should be adhered to ensure that the Will you wish to have probated gets there and is followed by the court.

Do I have to Sign my Will? And if so, why?

Ferguson v. Ferguson, 187 Va. 581, 47 S.E.2d 346, 1948 Va. LEXIS 249 (Va. 1948)

In this case, due to the testator's physical weakness he could not sign his own name. He directed the drafter of his will to sign in his stead. The court found this valid.

So What?

The signature is the crucial element of the Will. It is what authorizes the will document to speak for the testator after he dies. This precedent requires a signature of the testator or the mark of the testator or signature of the testator made by a srcibner at the testator's direction or the mark of the testator made by a srcibner at the testator's direction.

Case Law

This is a collection of Virginia Supreme Court cases that have molded the jurisprudence of probate in this state. Please note, when reading these cases, that most of the laws and statutes referenced by these court opinions have been rewritten and recodifed in a different section of the code. Hence, these cases may still serve as authority for the court but the practioner must find the code section referenced in these opinions and either link or distinguish them from the current statutes.

These opinions often reference Title 64.1 of the Virginia code. It has been repealed and replaced by Title 64.2.

Case Table

Albert v. Stafford, 123 Va. 338…………………………………….... ( Necessity of Witnesses )

Baldwin v. Baldwin, 81 Va. 405……………………………..... ( Presumptions of Attestation )

( Conscious Presence Test )

Beane v. Yerby, 53 Va. 239 …………………………....... ( Function of Self-Proving Affidavit )

( Witnessing the Signature )

( Both Witnesses Present )

( Function of Witnesses )

( Presence of Witness )

Barnes v. Bess, 171 Va. 1……………………………………………….. ( Mode of Execution )

Bruce v. Shuler, 108 Va. 670…………………………………… ( Competency of Witnesses )

Chappell v. Trent, 90 Va. 849………………....……………….. ( Signing in front of Testator )

Cheatham v. Hatcher, 71 Va. 56............... ( Evidentiary Requirement – Proper Execution )

Clarke v. Dunnavant, 37 Va. 13...........…. ( When there is a valid Execution Presumption )

( Value of Attestation Clause as Evidence )

Cross v. Grimes, 184 Va. 926…..........… ( Burden of Proof on showing proper Execution )

Dudleys v. Dudleys, 30 Va. 436…............ ( When there is a valid Execution Presumption )

( Witnesses must Sign after Testator )

Epes' Adm'r v. Hardaway, 135 Va. 80………………..………………. ( Creditor as Witness )

Fenton v. Davis, 187 Va. 463………………………....… ( Location of Signature – Testator )

Ferguson v. Ferguson, 187 Va. 581……………......… ( Testator Signature Requirements )

( Definition of Signature )

( Notary as a Witnesses )

( Reasons for Witness )

Fields v. Fields, 255 Va. 546………………....……... ( Testamentary Capacity of Testator )

( Meaning of Attestation )

First Church of Christ, Scientist v. Hutchings, 209 Va. 158........( Writing Must show Intent )

Forrest v. Turner, 146 Va. 734…………………………………………....……………. ( Intent )

French v. Beville, 191 Va. 842…….....…………………… ( Definition of Witness Signature )

( Purpose of Testator Signature )

( Testimony of Witnesses )

French v. Short, 207 Va. 548……………………………………………..... ( Foreign Probate )

Gibbs v. Gibbs, 239 Va. 197………….......……. ( Testamentary Capacity Burden of Proof )

Grady v. Fauls, 189 Va. 565…...........….. ( Burden of Proof on showing proper Execution )

Green v. Crain, 53 Va. 252…………….....………………………. ( Both Witnesses Present )

Hamlet v. Hamlet, 183 Va. 453, 32 S.E.2d 729……......…………… ( Signature at the End )

Hampton Rds. Seventh-Day Adventist Church v. Stevens, 275 Va. 205

( Location of Witness Signature )

( Attestation Requirements )

Holzbach v. United Va. Bank, 216 Va. 482............... ( Execution of Power of Appointment )

Jensen v. Peck, 16 Va. L. Reg. 915…………....………………. ( Recognition of Attestation )

Lester v. Simpkins, 117 Va. 55……………….……………………………. ( Mental Capacity )

Martin v. Coleman, 234 Va. 509…............….. ( Presumption in favor of Proper Execution )

McDaniel v. Guthrie, 16 Va. L. Reg. 659…………………...………… ( Right to make a will )

McElroy v. Rolston, 184 Va. 77……………………....……. ( Testator Signature at the End )

Moore v. Moore's Ex'r, 49 Va. 307……….........………. ( Must be able to See the Witness )

Neil v. Neil, 28 Va. 6…………………………………... ( Witness must sign in front Testator )

( Must be able to see the Witness )

( Presumption of Attestation )

Nock v. Nock's Ex'rs, 51 Va. 106………………….....………. ( Presumptions of Attestation )

Parramore v. Taylor, 52 Va. 220………..………………………… ( Both Witnesses Present )

Poindexter v. Jones, 200 Va. 372, 106 S.E.2d 144……………........ ( Testamentary Intent )

Presbyterian Orphans' Home v. Bowman, 165 Va. 484.......... ( Signature after Attestation )

Quenza v. Baum, 62 Va. Cir. 284……..………………………... ( Joint Testator as Witness )

Rice v. Freeland, 131 Va. 298…………………………….…………… ( Probate for Soldiers )

Riddell v. Johnson's Ex'r, 67 Va. 152………….......... ( Testator Evidentiary Requirement )

Robinson v. Ward, 239 Va. 36…………………………...…….. ( Intent of Witness to Attest )

( Purpose of Witness )

Rosser v. Franklin, 47 Va. 1…………………………………..… ( Witnessing the Signature )

Rudwick v. Lloyd, 69 Va. Cir. 139………………………………….. ( Mental Disease Alone )

Salyers v. Salyers, 186 Va. 927…………………………………...… ( Executor as Witness )

Savage v. Bowen, 103 Va. 540……………………….….. ( Purpose of Testator Signature )

Schilling v. Schilling, 280 Va. 146……....……………….. ( Law in-effect at Time of Death )

Slate v. Titmus, 238 Va. 557…………………………………. ( Signature – Clearly Visible )

Smith v. Smith, 112 Va. 205…………………………………………… ( Evidence of Intent )

Sturdivant v. Birchett, 51 Va. 67…………………..…………. ( Recognition of Attestation )

Thomason v. Carlton, 221 Va. 845………………..…………. ( Test For Mental Capacity )

Triplett v. Triplett, 161 Va. 906...............( Burden of Proof on showing proper Execution )

( Changes to Writing Prior to Execution )

Tucker v. Sandridge, 85 Va. 546........... ( Evidentiary Requirement – Proper Witnessing )

( Conscious Presence Test )

Weedon v. Weedon, 283 Va. 241…….......……… ( Definition of Testamentary Capacity )

Young v. Barner, 68 Va. 96……........ ( Weight of Evidence in Proving Proper Execution )

( When there is a valid Execution Presumption )

( Impeachment of a Will by a Witness )

( Mental Capacity )

What does my will have to have to be valid as a will?

Schilling v. Schilling, 280 Va. 146, 695 S.E.2d 181 ( 2010)

In this case, a father wrote a will and executed it leaving everything to his son. The problem was that the will was drafted and executed in compliance with an old statute that had been repealed and rewritten. The court said that the will must be in compliance with whichever statute was ineffect at the time of the testator's death because a will is a powerless and meaningless piece of paper until the testator actually dies.

So what?

After your will has been written and executed, you must continually insure that your will is in compliance with the current standing statutory requirements regarding a will. The current statutory requirements can be found in Va. Code Ann. § 64.2-403. Should this statute change, the will may need to be reexecuted.

So.....

Throughout your life, it is a good idea to continue to insure your will is up to date with the standard. Perhaps you should consider drafting a new will after major life events such as marriages and divorces or major aquisitions of assets such as the buying or selling of a house as these will also be good oppurtunities to recheck your will's compliance will the current law.

Whats the deal with Witnesses?

Beane v. Yerby, 53 Va. 239, 1855 Va. LEXIS 15, 12 Gratt. 239 (Va. 1855)

In this case the contestors of the Will argued that the Will was invalid becauase the witnesses were not clear on what they were witnessing. The court said that that did not matter. It said that the witnesses only needed to witness the signature of the Testator and be aware of his intent to make the document his last will and testament.

So...

When executing your will, ensure your witnesses are

Of sound mind
Watching you Sign
Understand what you are signing
Indicate that they have witnessed the signing
Understand that the document you are signing is reflects your final intentions

What do Witnesses have to do while I'm signing the Will?

Neil v. Neil, 28 Va. 6, 1 Leigh 6 (Va. 1829)

In this case there were questions as to whether or not the witness adequately fufilled there function by merely being in the same room as testator as he signed his will. The witnesses did not actually see the testator sign the Will. The court said that them being in the room was enough because they would know what was going on and so long as that is true, the witnesses can attest to the fact that the testator signed the document intending it to be his last will and testament.

So....

When executing your will, while your witnesses need not physically observe you sign it but ensuring they do is safer. It is also important for the witnesses to understand what you are signing and why.

How important is the execution to the probate process?

Young v. Barner, 68 Va. 96, 1876 Va. LEXIS 8, 27 Gratt. 96 (Va. 1876)

In this case a testator was contested as to the validity of her will. A physician/witness testified at trial as to her testamentary capacity. This testimony was given substantial weight insofar as proving the mental capabilities. The testimony substantially dwarfed the testimony of a turncoat witness that originally testified to the validity of the Will by signing the attestation clause and then reversing that testimony in trial. The court instructed the jury not to lend a lot of weight to this testimony but to still consider it.

So….

Consider a physical prior to executing the will. Fully explain to the witnesses why they are there and what you are asking them to observe and be able to attest to. Have the witnesses focus on the act of signing the document.