Wills in General
A will is an instrument which is testamentary in character (designed to dispose of an individual's property at death) therefore a will may not gift property during the testator's (person making the will) lifetime. An attested will is a drafted document that contains the testator's instructions as to how his or her property is to be distributed after his or her death. A holographic will is an document written by the testator's giving instructions as to how his or her property is to be distributed at his or her death. Holographic wills will not be discussed in this guide. An oral will is a spoken statement of the testator's instructions as to how his or her property is to be distributed at his or her death. Oral wills will not be discussed in this guide. A codicil is an amendment to a will. A complete discussion will not be covered in this guide, however many of the requirements of an attested will, as discussed, apply to codicils as well.
General Will Requirements
1. Must be at least 18 years old and of sound mind; 2. Executable on testator's death; and 3. Testator must intend the instrument to operate as his or her will.
Virginia has four formal requirements to validly execute an attested will. 1. The will must be signed by the testator; 2. The will must be witnessed by at least two attesting witnesses; 3. The Testator must sign the will in the presence of both witnesses at the same time; and 4. Each of the attesting witnesses must sign in the testator's presence. Note: Virginia has enacted a statute [VA. Code Ann 64.1-49.1] that an instrument can nonetheless be treated as a validly executed will if the proponent establishes by clear and convincing evidence that the decedent intended the document to constitute his will.
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