The court has a series a model jury insructions that the judge will read to a jury. This instruction tells the jury in lay and simple terms what they are tasked with finding. As far as a legally valid and properly executed will is concearned, the jury is instructed as follows.
**User Tip: The first and last set of instructions on this page are lised below and are the operational and binding instructions the jury is to follow and use to adjudicate the case. The coloumns on the right are the definitional instructions between each of these binding instructions. Use the instructions on the right to further your understanding of the information on the right.**
Instruction No. 48.000 Issues and Burden of Proof
Your verdict must be based on the facts as you find them and on the law contained in all of these instructions.
The only question in this case is whether this writing is [these writings are] the last will of (name of decedent). In deciding this question, you will have to consider these issues:
· (1) Was the writing properly executed? {Instruction 48.020}
· (2) Did (name of decedent) have testamentary intent when he signed it? {Instruction 48.030}
· (3) Did (name of decedent) have testamentary capacity when he signed it? {Instruction 48.040}
On these issues, the proponents of the will have the burden of proof by the greater weight of the evidence. (more than 50% of available evidence supports a finding for the proponent)
· (4) Was the writing ever revoked?
On this issue, the contestants have the burden of proof by the greater weight of the evidence. (more than 50% of available evidence supports a finding for the contestant)
· (5) Did anyone exert undue influence on (name of decedent)?
· (6) Did anyone fraudulently bring about the execution of a writing?
On these issues, the contestants have the burden of proof by clear and convincing evidence. (more than 75% of available evidence supports a finding for the contestant)
Your decisions on these issues must be governed by the following instructions.
Instruction No. 48.090 Finding Instruction
You shall find the writing dated (date of proponent’s will) to be the last will of (name of decedent) if the proponent proved by the greater weight of the evidence that:
You shall find that the writing dated (date of proponent’s will) was not the last will of (name of decedent) if the proponent failed to prove any one or more of the elements above; or if the contestant proved by clear and convincing evidence that the writing dated (date of proponent’s will) was revoked; or if the contestant proved by clear and convincing evidence that the writing dated (date of proponent’s will):
WHAT IS A WILL
Instruction 48.010 basically says:
A will is any document intended to dispose of property after ones death.
PROPER EXECUTION:
Instruction 48.020 basically says:
Any type-written will is not valid without a signature of the testator or a surrogate signature in leiu of the testators but enscribed at the direction of the testator while in the testators presence. The aforementioned signing must be done in the presence of two witnesses who then sign the will as witnesses in the presense of the testator after having witnessed the testator sign his will. The testator must sign and then the witnesses must sign directly after.
2-48 Virginia Model Jury Instructions - Civil Instruction No. 48.020
TESTAMENTARY INTENT:
Instruction 48.030 basically says:
The testator must intend that the writing (document offered as his/her will) actually be his final wishes as to the disposition of his property and that these wishes be followed after he died. This intent can be clearly and expressly stated in the document or implied from the surrounding circumstances.
2-48 Virginia Model Jury Instructions - Civil Instruction No. 48.030
TESTAMENTARY CAPACITY
Instruction 48.040 basically says:
That at the time the signing of the will takes place, the testator has the mental ability to understand that he is making a will, knows where his property is going according to the will, knows of everyone who might potentially be heirs to his/her estate to whom he/she may naturally be inclined to give property too (cant have capacity if you forgot your have a wife), make a deliberate decision as to who gets what asset or property.
2-48 Virginia Model Jury Instructions - Civil Instruction No. 48.040
REVOCATION:
Instruction 48.050 basically says:
Even if your will is valid and properly executed, if a revocation has occured then your will cannot be probated without a revival. A revocation is when a subsequent properly executed will expressly revokes the prior will or the testator or a surrogate under the direction of and in the presense of the testator "tear[s], burn[s],obliterate[s], cancel[s], destroy[s], draw[s] lines through, intentionally write[s] over the actual words of the will" or blots out the signature. All of this must be done with the deliberate intent of the testator, there are no accidental revocations.
2-48 Virginia Model Jury Instructions - Civil Instruction No. 48.050
REVOCATION PRESUMPTION
Instruction 48.055 basically says:
If, after proving to a "greater weight of the evidence" that the testator kept custody of his will and it is not found upon his death; then the will is assumed to be destroyed and hence revoked. A proponet of the will must show "clear and convincing evidence" that the will in custody of the testator was was not intentionally destroyed and revoked.
2-48 Virginia Model Jury Instructions - Civil Instruction No. 48.055
REVIVAL
Instruction 48.060 Basically Says:
After a successful revocation, revival can only after an intentional execution of the wils.
2-48 Virginia Model Jury Instructions - Civil Instruction No. 48.060
UNDUE INFLUENCE
Instruction 48.070 basically says
Undue influence takes away the "conscious and deliberate choice[s]" of the testator; the undue influence has to overwhelm the testators free will. A will found to have been executed under undue influence is invalid.
2-48 Virginia Model Jury Instructions - Civil Instruction No. 48.070
