Virginia legislatures written and repealed and rewritten the code of Virginia several times. This can, at times, leave the knowledger seeker with a compulsion to repeatedly slam their head off the wall. You are not alone. Virginia's probate Code was written in 1949 and took effect February 1 in 1950. It was repealed and rewritten in 1968 and then sections of the code have been written and rewrittin periodially up through the early 2000's and then in 2012 the entire probate section was rewritten and is now designated as Titile 64.2 of Code of Virginia. Many of the case opinions, websties, and written publications reference the older section of the code (64 or 64.1 - repealed). When doing your research, ensure that your ensure the answer to your question is in compliance with the latest section of the probate code which is 64.2.
Chapter 161 of House Bill 394 of the 2000 Session was enacted March 24, 2000
Enacted 64.2 - 401 into law.
A. Except as provided in subsection B, any individual may make a will to dispose of all or part of his estate at his death that, if not disposed of, would otherwise pass by intestate succession, including any estate, right, or interest that the testator may subsequently become entitled to after the execution of the will.
B. An individual is not capable of making a will if he is (i) of unsound mind or (ii) an unemancipated minor.
Be it enacted by the General Assembly of Virginia:
Section 64.1-47. Who may not make a will.
No person (I) of unsound mind or (II) under the age of eighteen years, UNLESS EMANCIPATED PURSUANT TO ARTICLE 15 (SECTION 16.1-331 ET SEQ.) OF CHAPTER 11 OF TITLE 16.1, shall be capable of making a will.
Chapter 614 of Senate Bill 115 in the 2012 session was enacted on April 4, 2012.
Enacted 64.2 - 403 into law.A. No will shall be valid unless it is in writing and signed by the testator, or by some other person in the testator's presence and by his direction, in such a manner as to make it manifest that the name is intended as a signature.
B. A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses.
C. A will not wholly in the testator's handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.
This replaced § 64.1-49 - Will must be in writing, etc.; mode of execution; witnesses, and proof of handwriting
No will shall be valid unless it be in writing and signed by the testator, orby some other person in his presence and by his direction, in such manner asto make it manifest that the name is intended as a signature; and moreover,unless it be wholly in the handwriting of the testator, the signature shallbe made or the will acknowledged by him in the presence of at least twocompetent witnesses, present at the same time; and such witnesses shallsubscribe the will in the presence of the testator, but no form ofattestation shall be necessary. If the will be wholly in the handwriting ofthe testator that fact shall be proved by at least two disinterestedwitnesses.
Title 62
Title 62.1
Title 63
Title 63.1
Title 63.2
Title 64 - Wills and Decedent's Estate [ Repealed ]
Title 64.1 - Wills and Decedent's Estate [ Repealed ]
Title 64.2 - Wills, Trusts, and Fiduciaries
Subtitle I. General Provisions
Subtitle II. Wills and Decedents Estates
Chapter 2. Descent and Distribution
Chapter 3. Rights of Married Persons
Chapter 4. Wills
Article 1. Requisites and Execution
Article 2. Revocation and Effect
Article 3. Construction and Effect
Article 4. Uniform International Wills Acts
Article 5. Probate
Article 6. Recordation and Effect
Chapter 5. Personal Representatives and Administrations of Estates
Chapter 6. Transfers without Qualification
Subtitle III. Trusts
Subtitle IV. Fiduciaries and Guardians
Subtitle V. Provisions Applicable to Probate and Non-probate transfers
Title 65
Title 65.1
Title 65.2
Title 66
Title 67
Chapter 64 of House Bill 491 of the 1990 session was enacted March 4, 1990
§ 64.2-452. How will may be made self-proved; affidavits of witnesses
A will, at the time of its execution or at any subsequent date, may be made self-proved by the acknowledgment thereof by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths under the laws of the Commonwealth or the laws of the state where acknowledgment occurred, or before an officer of the foreign service of the United States, a consular agent, or any other person authorized by regulation of the United States Department of State to perform notarial acts in the place in which the act is performed, and evidenced by the officer's certificate, attached or annexed to the will. The officer's certificate shall be substantially as follows in form and content:
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, and subscribed and sworn before me by ............… and .........., witnesses, this … day of ........, A.D., ..…
SIGNED ..................................…
.............................................….
(OFFICIAL CAPACITY OF OFFICER)
The affidavits of any such witnesses taken as provided by this section, whenever made, shall be accepted by the court as if it had been taken ore tenus before such court, notwithstanding that the officer did not attach or affix his official seal thereto. Any codicil that is self-proved under the provisions of this section that, by its terms, expressly confirms, ratifies, and republishes a will except as altered by the codicil shall have the effect of self-proving the will whether or not the will was so executed originally.
This replaced § 64.1-87.1 - How will may be made self-proved
64.1-87.1. How will may be made self-proved.
A will, at the time of its execution or at any subsequent date, may be madeself-proved by the acknowledgment thereof by the testator and the affidavitsof the attesting witnesses, each made before an officer authorized toadminister oaths under the laws of this Commonwealth or the laws of the statewhere acknowledgment occurred or before an officer of the foreign service ofthe United States, a consular agent, or any other person authorized byregulation of the United States Department of State to perform notarial actsin the place in which the act is performed, and evidenced by the officer'scertificate, attached or annexed to the will. The officer's certificateshall be substantially as follows in form and content:
STATEOFVIRGINIA COUNTY/CITYOF............ Before me,the under signed authority, on this day personally appeared ........,........, and......., known to me to be the testator and the witnesses, respectively, whose name resigned 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 there to 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, and subscribed and sworn before me by ................ and ........., witnesses, this .... day of ........, A.D., ....... SIGNED .................... .................... (OFFICIALCAPACITYOFOFFICER)
The sworn statement of any such witnesses taken as herein provided, whetherbefore, on or after July 1, 1986, shall be accepted by the court as if it hadbeen taken ore tenus before such court, notwithstanding that (i) the officerdid not attach or affix his official seal thereto or (ii) the acknowledgmentwas before an officer authorized to administer oaths under the laws ofanother state. Any codicil which is self-proved under the provisions of thissection which also, by its terms, expressly confirms, ratifies andrepublishes a will except as altered by the codicil shall have the effect ofself-proving the will whether or not the will was so executed originally.
