Contesting a Will in Virginia

When someone dies in Virginia, they often leave behind certain personal and financial issues that need to be settled. Many of the appropriate directives can be found in that person’s last Will and Testament, known more informally as a will. A will is supposed to facilitate the smooth and efficient settlement of an estate, but it doesn’t always work out that way. When family members or other interested parties dispute the terms of this legal document, a will contest can result during the probate process.

 If you believe that the will of a deceased person does not reflect their true intentions or that the document itself is not genuine, you should contact a Virginia estate planning lawyer with experience in estate litigation. Similarly, if you are the executor of a will being contested and you believe the will to be genuine, an experienced lawyer can help you address any challenges and fight to ensure the decedent’s wishes are honored.

At Poole Brooke Plumlee, we have experience both contesting and defending wills. In this blog, we explain the laws involved in contesting a will in Virginia and how an experienced estate planning attorney can help you take legal action.

The Purpose of a Will

A will is a legally-binding document that specifies how the deceased’s final affairs should be handled. This will include, but not necessarily be limited to, details on how to deal with issues such as:

• Identifying beneficiaries and their inheritances
• Property distribution instructions
• Debt repayment
• Transition instructions for a business
• Guardianship of any minor children if their other parent is dead
• Naming an executor to administer and manage the estate 

Executors may be assigned such tasks as notifying all relevant heirs of the person’s death, paying the estate debts, distributing remaining assets to rightful heirs, and paying the decedent’s final year of income taxes and any accumulated taxes.

What Makes a Will Valid?

In order for a will to be valid and enforceable, it must meet testamentary formalities outlined by the General Assembly in the Code of Virginia, namely:

• The entire document must be written by the testator.
• The testator must sign and date the will.
• The will must be signed and witnessed by at least two individuals at the same time that the testator signs it.

A valid will is generally enforceable by the courts.  However, in some cases, there may be doubt whether a document is truly the last will and testament of the individual. In our estate litigation practice, we have seen a variety of situations that raise questions about the validity of wills, many of which will be explored in the next section. When such a dispute exists, it is necessary for the court to make a final determination.

Grounds For Contesting A Will In Virginia

Virginia law recognizes a variety of reasons for contesting a will that has been admitted to probate. In many cases, will contests are initiated by estranged family members who are left out of the will or disinherited and want to claim the money and property they believe to be rightfully theirs. Provided that there is sufficient evidence, accepted grounds for contests include:

• Lack of testamentary capacity, meaning that the decedent was not of sufficiently sound mind to create a will. This may be due to a mental condition or age-related cognitive problems.
• There was undue influence involved- a third party influenced the decedent to make certain provisions in the will.
• The decedent was pressured or intimidated into signing a will. This can happen when elder abuse is involved: they are reliant on a caregiver and fear the consequences if they don’t comply.
• The will contains unusual provisions that are not consistent with the wishes they expressed prior to death. For example, they left a vacation home to their daughter when they always stated that the property would eventually belong to their son.
• The document was invalid because it failed to meet all testamentary formalities. It is generally easier to contest a will for technical reasons, such as failure to sign it or have it witnessed.
• There is clear and convincing evidence that the will was forged.
• The will had been previously revoked by the decedent.

Two of the most common grounds for contesting a will are lack of testamentary capacity and the use of undue influence upon the testator.

Testamentary Capacity Explained

Signing a will requires testamentary capacity. To have testamentary capacity in Virginia, a person must meet the following criteria:

• Be at least 18 years old
• Understand that they are making and signing a will
• Know the people they are naming as beneficiaries in the will
• Know the nature and extent of their assets and property
• Understand the will and its provisions

Clear and convincing evidence of failure to meet these requirements can cause the resulting will to be revoked or set aside.

In most cases, lack of capacity is established by a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or by the testimony of witnesses to the irrational conduct of the deceased during the period when the will was executed. The testimony of the witnesses present when the testator executed the will, as well as the testimony of the attending physicians, are of great importance.

Undue Influence Explained

The claim of undue influence often arises when someone (often an adult child) prepares their parent’s or another relative’s will and leaves themselves a larger inheritance than they might otherwise have received. Although undue influence can be hard to prove, the following circumstances might establish that it occurred:

• The testator lacked mental capacity
• The person allegedly exerting undue influence was actively involved in procuring or preparing the will.
• The testator and the person who exerted undue influence had a confidential relationship or fiduciary relationship, such as power of attorney.
• A prior will showed that the testator had another plan for the distribution of their assets.

As proving undue influence can be difficult, concerned relatives should consult an experienced Virginia will contest attorney to determine whether they may have grounds for contesting their loved one’s will.

Who Can Contest a Will in Virginia?

Only interested parties can contest a will in Virginia. The term “interested party” refers to someone who has the standing to challenge an estate and is usually someone who receives property under the will.  It could also be a person who has a legal claim on the estate, such as a spouse or illegitimate children, or someone who would inherit under the laws of intestacy if the will were declared invalid.

It is important to note that surviving spouses living in Virginia cannot be completely eliminated from a decedent’s estate. The spouse is entitled to an elective share equal to one-third of the estate if there are surviving children, or one-half if there are no surviving children. To receive their elective share, a spouse does not have to contest the will, but they must file a claim within six months of the date the will was probated.

The Contest Process Explained

Once you’ve verified your status as an interested person and identified at least one ground for contesting a will (e.g. suspicion of fraud), there are two ways to contest a will in Virginia:

• File an appeal with the circuit court within six months after the clerk enters the order that probates the will. In these cases, the question is whether the document admitted to probate is actually the decedent’s will.
• File a complaint in circuit court challenging the validity of the will.  In such a case, the applicable statute stated that the court must order a  jury trial to hear the case.  

In both instances, you and your estate attorney will have the opportunity to argue your case and explain why the will should be set aside. 

Is a Handwritten Will Legal in Virginia?

While handwritten (holographic) wills are not very common, they are still used under certain circumstances. For example, a person who has been hospitalized for a serious illness and lacks a formal will may write down their wishes on a piece of paper and get it witnessed.

These wills are valid and enforceable in Virginia, but there are a few requirements that must be observed:

• It must be entirely handwritten by the testator, who must also have appropriate mental capacity. 
• The testator must sign it. 
• Two witnesses must be able to attest that the will was written by the testator. 

According to the applicable statute, the will can be contested if any of these proper formalities are in question. 

How Long Do You Have to Contest a Will?

Depending on the circumstances, the time frame may be anywhere between six months to two years. 

• Anyone interested in the probate of a will may appeal an order within six months after the probate clerk has admitted it.
• If the probate court has admitted the will, an interested person who has not yet been before the clerk or court may seek to contest the will within one year from the date the order was entered.
• The time limit is two years if an interested person was proceeded against by publication.

Minors and incapacitated people have an extended time frame, as do those who were not served personally and did not participate when the will was admitted to formal probate. An estate litigation lawyer at Poole Brooke Plumlee can explain which deadline may apply to your case and ensure that all appropriate paperwork is filed with the court within the appropriate time limit.

Do You Need an Attorney to Contest a Will in Virginia?

While the law does not require you to use an estate attorney for a will contest, you stand a better chance of succeeding if you do. The laws that govern will challenge are highly complicated, and without the guidance of an estate litigation lawyer, you could make serious mistakes or even forfeit your rights, especially if the will has a terrorem clause (otherwise known as a no-contest clause, which can disinherit beneficiaries who challenge the will).

The knowledgeable and respected estate attorneys at Poole Brooke Plumlee have years of experience representing clients in will contests. We understand the financial difficulties and emotional strain involved in estate litigation, and will vigorously advocate for your interests.

Contact a Virginia Estate Litigation Lawyer Today

When properly drafted by someone with testamentary capacity, a last will and testament makes the testator’s final wishes clear. Unfortunately, undue influence, acts of fraud, and lack of capacity often result in a document that doesn’t accurately reflect their intentions. If this happens and you are an interested party, you may want to contest it.

Contesting a Will in Virginia can be a complicated and lengthy process, and experienced counsel is key to successfully navigating each step. To schedule a confidential case review, reach out to Poole Brooke Plumlee today through our online contact form.