The statutes require the testator to (1) sign his will, (2) list to witnesses who can attest to the testator's intent, capacity, and desires. The witnesses must be competent.
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.
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.
This is saying that a witness must have the capacity to undersand exactly what it is it is the witness is attesting to. Without the capacity to understand what is happening, the court cannot get the required assurances that the court requires to believe that the document in question is in fact the summary of the testator's final wishes. The witness must be able to understand that the document he is watching the testator sign is the testators final will and that the signature is in fact the authorizing act that makes the will a legally effective instrument.
Undue Influence is a form of fraud. It is fraud that is deadly to the successful submission of a will to probate. A finding that undue influence was present at the time of the execution of the instrument (will) often negates the potent weight of the evidence establishing testamentary capacity. The court assumes that the ability to understand what the will says, where the property will go, and everyone who the testator may wish to benefit, all succumb to the potency of a presence of undue influence. The Judeo-Christian values are the basis for a lot of laws in this country, this leads us to the understanding that the courts desire to respect and honor the dead, thus any inference of fraud or inference that the testator might have suffered during the drafting or execution stage of the will writing process is viewed as not being the TRUE final intentions of the testator and therefore not actionable because the idea of the final will and testament is sacred and not to be the express will or desire of anyone but the testator and the potential that that the final intention is actually someone else’s wishes is less preferable than allowing an older will or intestacy.
In order for a will to be self-proving, the will must contain writing “substantially similar” to the text, signatures, and seals described and portrayed below.
STATE OF VIRGINIA
COUNTY/CITY OF ___________
Before me, the undersigned authority, on this day personally appeared __________, _________, and _________, known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn, __________, the testator, declared to me and to the witnesses in my presence that said instrument is his last will and testament and that he had willingly signed or directed another to sign the same for him, and executed it in the presence of said witnesses as his free and voluntary act for the purposes therein expressed; that said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will and testament in the presence of said witnesses who, in his presence and at his request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on the day of the date of said will, and that the testator, at the time of the execution of said will, was over the age of eighteen years and of sound and disposing mind and memory.
___________
Testator
___________
Witness
___________
Witness
Subscribed, sworn and acknowledged before me by _________, the testator, subscribed and sworn before me by ________, and _________ witness, this day of __, ______, ____ A.D., SIGNED
(OFFICIAL CAPACITY OF OFFICER)
The sworn statement of any such witnesses taken as herein provided shall be accepted by the court as if it had been taken ore tenus before such court.
Part I Harrison on WILLS AND ADMINISTRATION FOR VIRGINIA AND WEST VIRGINIA
CHAPTER 1 Introductory.
CHAPTER 2 Dower and Curtesy.
CHAPTER 2A The Elective Share.
CHAPTER 3 Descent and Distribution.
CHAPTER 4 Gifts Causa Mortis.
CHAPTER 5 Contracts to Make a Will.
CHAPTER 6 Joint, Mutual and Reciprocal Wills.
CHAPTER 7 Testamentary Intent.
Synopsis to CHAPTER 7 : Testamentary Intent.
§ 7.01 Introductory.
§ 7.02 Testamentary Intent Essential.
§ 7.03 Evidence of Intent.
§ 7.04 Testamentary Papers Which Are Not Wills.
§ 7.05 [Reserved]
§ 7.06 Fraud.
§ 7.07 Actual or Constructive.
§ 7.08 Mistake.
§ 7.09 Contingent or Conditional Wills.
CHAPTER 8 Testamentary Capacity.
Synopsis to CHAPTER 8 : Testamentary Capacity.
§ 8.01 Introductory.
§ 8.02 [Reserved]
§ 8.03 Who May Not Make a Will.
§ 8.04 Married Women at Common Law.
§ 8.05 Aliens.
§ 8.06 Infants.
§ 8.07 Persons of Unsound Mind.
(1) In General.
(2) Condition at Time of Executing Will Determines Capacity.
(3) Effect of Prior Adjudication of Insanity.
(4) Capacity to Make Deeds and Wills Compared.
(5) Formula for Determining Capacity.
(6) Age of Testator.
(7) Eccentricity of Testator.
(8) Forgetfulness, Sickness, Weakness, Mental Distress, Use of Intoxicants or Drugs.
(9) Unnatural Dispositions.
(10) Lucid Intervals.
(11) Monomania.
§ 8.08 Persons Under Undue Influence.
(1) In General.
(2) What Constitutes.
§ 8.09 [Reserved]
§ 8.10 Presumptions and Burden of Proof; Testamentary Capacity.
§ 8.11 Undue Influence.
§ 8.12 Questions for the Jury.
§ 8.13 Admissibility of Evidence to Determine Capacity.
§ 8.14 Witnesses as to Capacity.
§ 8.15 Attesting Witnesses.
§ 8.16 Witnesses at the Factum.
§ 8.17 Physicians and Experts.
§ 8.18 Nonexpert Testimony.
CHAPTER 9 Requisites of Execution.
Synopsis to CHAPTER 9 : Requisites of Execution.
§ 9.01 Introductory.
§ 9.02 Definition of Will and Codicil.
§ 9.03 What Law Governs.
§ 9.04 Statutes Must Be Strictly Followed.
§ 9.05 Statutory Requisites.
§ 9.06 The Will Must Be in Writing.
(1) In General.
(2) Language and Manuscript Immaterial.
(3) Form of Will Immaterial.
(4) Character of Evidence Admissible.
(5) Separate Testamentary Papers.
(6) Incorporation by Reference.
(7) Exception for Tangible Personal Property.
(8) Letters of Instruction or Memorandum.
§ 9.07 The Will Must Be Signed by Testator in Accordance with Statute.
(1) In General.
(2) Purpose of Statutory Requirement.
(3) Signature Need Not Be at Physical End of Will.
(4) Sufficiency of Testator’s Signature.
(5) Order of Signing Will.
(6) Sufficiency of Attesting Signatures.
§ 9.08 Unless a Holographic Will, Signature Must Be Made or Will Acknowledged in Presence of Two Competent Witnesses, Present at the Same Time.
(1) In General.
(2) What Constitutes “Presence.”
(3) Competency of Attesting Witnesses.
§ 9.09 Witnesses Must Subscribe in Presence of Testator and, in West Virginia, in Presence of Each Other.
§ 9.10 Holographic Wills.
§ 9.10A Substantial Compliance with Will Formalities.
§ 9.11 Nuncupative Wills.
§ 9.12 Execution of Power of Appointment.
§ 9.13 Self-Proved Wills.
§ 9.14 International Wills.
CHAPTER 10 Revocation of Wills.
CHAPTER 11 Probate of Wills.
CHAPTER 12 Grant of Administration.
CHAPTER 13 Inventory and Appraisement.
CHAPTER 14 Suits to Impeach or Establish Wills.
CHAPTER 15 Renunciation and Disclaimer.
CHAPTER 16 Construction of the Will.
CHAPTER 17 Beneficiaries.
CHAPTER 18 Property Disposed Of.
CHAPTER 19 Estates Created.
CHAPTER 20 Vested and Contingent Interests.
CHAPTER 21 Conditions, Trusts and Powers.
CHAPTER 22 Legacies and Devises.
CHAPTER 23 Assets of the Estate.
CHAPTER 24 Rights of Creditors.
CHAPTER 25 Personal Representatives; Rights and Duties.
CHAPTER 26 Accounting and Distribution.
CHAPTER 27 Suits to Surcharge and Falsify.
CHAPTER 28 Administration Suits.
CHAPTER 29 The Order of Reference.
CHAPTER 30 Judicial Sales.
CHAPTER 31 Taxation.
CHAPTER 32 Summary Administration of Small Estates.
CHAPTER 33 Living Wills and Power of Attorney.
Forms
