Michie's Jurisprudence
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Testamentary Capacity is defined as the ability to truly understand the statements made in the instrument, to be able to remember and consider all those whom the testator might wish to benefit, and grasp the legal effect of the execution of the document. The states statute provides a limit as to who can be considered to have testamentary capacity, those under 18 who are not emancipated and those of an unsound mind. Unsound mind is not described as having any particular disease or disability or of severity of same. The unsound mind is described as being a fluctuating state, and the presence of true testamentary capacity can occur in anyone suffered from a debilitating psychosis during a period of lucidity. The testamentary capacity is defined as AT THE TIME of execution, being able to understand the document, where the property listed in the is going, what the sum total value and expanse of his or her estate is, and a clear memory of everyone the testator may want to benefit with the will ( You cannot have clear testamentary capacity if you forget you have some grandkids, leaving a family member out of a will must be intentional and explainable ). Medical diagnosis and undue influence are the principal challengers to testamentary capacity.
Testamentary Intent is the desire to dispose of a testator’s property. It is required to be present when a will is executed so as to give it any meaning or value. It along with the intent to sign are the essence of the proof required for a will to be considered value. The other requirement is that the text of the will makes it clear to the reader that the testator is intending to dispose of his property in the manner illustrated by the document. It is also important to understand that the testamentary intent, while crucial, it is not enough to make a valid will.
Fraud does not sit well with the court, a determination that there is frau invalidatesthe witnesses testimony, the execution formalities, and or language in the will expressing intent. Fraud is a determination the testator was somehow tricked or confused into executing a will. Undue influence is another form of fraud that denotes that the testator has been coerced into devising the property as the instrument specifies. This undue influence must be strong enough to surpass the independant desires of the testator. To show undue influence the contestant must show a prior intnetion for a devise and then that involved the influence and then a change to the devise.
I. INTRODUCTION.
II. REQUISITES AND VALIDITY.
A.TESTAMENTARY CAPACITY.
1. Generally.
§ 5.Persons Under Disability.—
§ 6.Time When Capacity Must Exist.—
2. Persons of Weak or Unsound Mind.
a. Generally.
§ 7.Rule Stated.—
§ 8.Rule as to Old Age and Eccentricities.—
b. Degree of Capacity Required.
§ 9.General Consideration.—
§ 10.Degree of Memory Requisite.—
c. Evidence of Capacity.
§ 11.Burden of Proof and Presumptions.—
§ 12.Admissibility Generally.—
§ 13.Weight and Sufficiency.—
§ 14.Opinion Testimony.—
d. Instructions.
§ 15.Generally.—
B. WHAT PROPERTY MAY BE DEVISED OR BEQUEATHED.
C. WHO MAY BE DEVISEES OR LEGATEES.
D. TESTAMENTARY INTENT.
§ 19.Generally.—
§ 20.Specific Instances.—
E. KNOWLEDGE OF CONTENTS.
§ 21.Generally.—
F. FORMAL REQUISITES.
1. Writing.
§ 22.Generally.—
2. Form and Contents.
a. Form.
§ 23.Generally.—
§ 24.Separate Writings.—
§ 25.Will in Form of Letter.—
§ 26.Erasures and Interlineations.—
b. Contents.
§ 27.Description of Property Devised or Bequeathed.—
§ 28.Description of Devisees or Legatees.—
3. Execution.
a. Generally.
§ 29.General Rules.—
b. Signing.
§ 30.Generally.—
§ 31.Place of Signing.—
c. Witnesses to Signing or Acknowledgment of Will.
§ 32.Generally.—
§ 33.Necessity for Witnesses to Be Present at Same Time.—
§ 34.Necessity for Witnesses to Sign in Presence of Testator.—
§ 35.The Request That Witnesses Shall Sign.—
§ 36.Form and Manner of Attestation and Order of Signing.—
d. Proof of Execution.
§ 37.Generally.—
§ 38.Testimony of Subscribing Witnesses.—
G.VALIDITY.
§ 39.Generally.—
§ 40.Effect of Fraud, Undue Influence or Mistake.—
§ 41.Effect of Partial Invalidity.—
H.PARTICULAR WILLS CONSIDERED.
§ 42.Holographic Wills.—
§ 43.Oral or Nuncupative Wills.—
§ 44.Contingent Wills.—
§ 45.Joint and Mutual Wills.—
III.REVOCATION, REVIVAL AND REPUBLICATION.
A. REVOCATION.
B. REVIVAL.
C. REPUBLICATION.
IV.PROBATE AND CONTEST OF WILLS.
A. PROBATE.
B. CONTEST.
Testamentary Intent is the desire to dispose of a testator’s property. The burden of proof rests on the propounder of the will. There is a presumption for testamentary capacity when the execution formalities. Everyone is entitled to make a will and dispose of their property. If the will contestant of the will alleges undue influence, the presumption of testamentary capacity and proper execution is overridden by the allegation of undue influence. The undue influence excreted on a testator to such a point that the testators free-will is overpowered concerns the court to the point that it will not allow the court to honor the document as a last will and testament. To determine undue influence, they look at the conduct and interactions of a testator shortly before and after the drafting and execution of the will or codicil. They specifically look for an interaction in which a beneficiary was benefited in manner that they were not prior to the interaction.
The instrument must be in writing. There are special allowances for active duty servicemen that permit exceptions to this rule. Writing simply means on paper, whether handwritten or typed. There is no set form are specific verbiage required. The is no difference in the language stated request, command, will, devise, etc. No language is disallowed; it will simply be ignored if it goes against Virginia code such as disinheriting language. The latest validly executed will disposes of the property. Two papers executed on the same day will be viewed as one paper/instrument/will.
The will must bear the testators signature. The printed name is not enough to show the intention of the testator to have this document be treated as his final wishes. The testator need not sign the will himself, nor must it be his signature, but the testator through his own power or through a proxy acting under the testator’s direction. Intent alone is insufficient to surpass a lack of signature. A mere name on an instrument is not sufficient to amount to a signature. Alternatively, a mere signature is not enough, they must sign with the intent to make the document legally binding as their last will and testament. The attestation clause is not part of the will and must be executed separately. Two witnesses must witness the signature and be able to attest to the fact the document does in fact represent the testator’s final wishes and that he signed the document to that effect. Witnesses must then sign in attention in the presence of the testator. The witnesses must sign in the “conscious presence” of the testator which amounts to being in the same room essential where the testator could see, and know, that his witnesses are signing his will.
