Common Challenges to Virginia Wills

A last will and testament is an important part of any estate plan. But it’s only good so much as it is properly drafted and in compliance with the law. When they aren’t drafted properly, issues can easily arise. Here, we discuss some of the common challenges wills in Virginia face due to poor will preparation and execution.

Common Challenges to Virginia Wills

Though there are many reasons why a poorly drafted will will face challenges in Virginia, we provide an overview of the most common causes. 

Lack of Testamentary Capacity

Wills in Virginia are commonly challenged on the basis that the testator lacked the testamentary capacity to create or amend the will when it was signed. This happens most often when the testator suffered from Alzheimer’s Disease or another form of dementia or was thought to be insane at the time the will was made. In order to have testamentary capacity, a person must understand four basic things: 

  1. What is the extent of their estate;
  2. Who are the heirs being named;
  3. What is the disposition of their assets; and 
  4. How these elements all relate to one another in the will.

Undue Influence

Another common challenge to a will is that someone unduly influenced the testator so that their own wishes for the distribution of the estate would be reflected in the will. A person accused of undue influence must do more than suggest ideas for an estate plan – they must exert so much pressure that the creator of the estate plan loses their own free will and succumbs to the wishes of the influencer. Undue influencers are often close family members, friends, and caregivers of the deceased.

Fraud or Forgery

Fraud and forgery are also grounds for challenging a will in Virginia probate court. Fraud refers to the use of deception to create or amend a will that was not the testator’s wishes, such as hiding the signature page in a stack of other papers. Forgery implies the creation of fake documents that have been presented as the will, including the creation of fake pages, removing pages, or forging an entirely new document that is meant to pass as the will.

Procedural Issues

A will may also be challenged on procedural issues. Every state, including Virginia, has laws about how a will may be legally created, and the document can be thrown out or reverted to a prior version if the proper legal steps were not taken. Examples of procedural issues include the absence of witnesses or the failure to sign the will. 

How You Can Avoid a Challenge to Your Last Will & Testament

The most efficient way to ensure that your last will and testament in Virginia is not challenged––meaning your assets are distributed per your instructions to your heirs and designated beneficiaries––is simple: retain a seasoned estate planning attorney. A competent estate planning attorney will comply with all procedural requirements necessary to ensure your will complies with Virginia testacy law. As a neutral party, the attorney can also take steps to ensure you have legal capacity to sign a will and are not under any undue influence but are distributing property according to your wishes. Further, a trusted estate planning attorney will make certain that your will is protected in a safe place to minimize or prevent any attempt at fraud or forgery.

As you can imagine, challenges to a will can be complex and emotionally exhausting. If you want to make sure your loved ones do not suffer that fate, get your will drafted by a respected estate planning attorney. Contact us at Select Law Partners, PLLC to schedule an estate planning consultation today.

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Sara Josey

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