It could be a family’s nightmare.  A deceased relative tried to make his or her will, but it was improperly executed.  Therefore, the relative’s estate will be distributed pursuant to an old will or, if there is no other will, the intestate laws of the Commonwealth.  Such a result could lead to that person’s estate being distributed in a way inconsistent with his or her wishes and/or negative tax consequences.  However, in Virginia, a family has a legal avenue to attempt to avoid these problems by ensuring that a deceased relative’s will is upheld notwithstanding imperfections in its execution.

Generally, wills in Virginia may not be considered valid and admitted to probate unless they were executed in compliance with Virginia Code Section 64.2-403, which provides that a document is not a valid will unless it was (1) written wholly in the testator’s handwriting and signed by the testator or

Last Will and Testament with Fountain Pen

(2) if the will is not wholly in the testator’s handwriting, then it must be (i) signed by the testator or by another person in the presence of the testator and according to the testator’s direction, in a way that it is obvious that the name is intended to be a signature, and (ii) signed in the presence of at least two competent witnesses who are present at the same time and who also sign the will in the presence of the testator.  Given that these requirements are very technical, it is possible for an individual, especially one who does not have the assistance of an attorney, to make a will without realizing that he or she failed to satisfy the criteria for proper execution.

Virginia law provides that there is a chance that imperfectly-executed wills may be admitted to probate.  In 2007, the General Assembly passed a law providing that a will that was not properly executed in conformity with Virginia Code Section 64.2-403 may be admitted to probate in some circumstances.  Virginia Code Section 64.2-404 provides that if a document was not executed in compliance with Virginia Section 64.2-403, the document may be treated as if it was executed properly if the person or persons seeking to have the will admitted to probate shows by clear and convincing evidence that the decedent intended for the document to serve as his or her will.  Notably, while other imperfections in the execution process may be excused, Section 64.2-404 may not be used to excuse requirements regarding the decedent’s signature except for in limited circumstances.

In order to attempt to probate such a document, the proponent must file suit in a state circuit court within one year of the decedent’s death seeking to have the court enter an order that the document be admitted to probate.  Further, all people interested in the matter must be added as parties.  Thus, anyone whose rights would be affected by the probating of the document must be before the court.  A court may have to appoint guardians ad litem for interested people who are minors or who are otherwise unable to protect their own rights.

In summary, Virginia Code Section 64.2-404 provides an opportunity for a family to have a deceased relative’s estate distributed pursuant to the wishes expressed in his or her will, even if that will was improperly executed.  Families with improperly-executed wills of deceased relatives should seek the advice of legal counsel to evaluate whether to attempt to have such wills admitted to probate.

For more information on this topic, please contact W. Thomas Chappell, Esq. at