Wills – Dispensing with Formalities

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By M. Bradley Brickhouse
Oast & Hook, P.C., Virginia Beach, VA

Copyright © 2010 by Oast & Hook, P.C.

Jane was told by her physicians that she has a terminal disease, and that she has less than a year to live. She is a mentally competent 30-year old who has never been married and has no children. After a few weeks of contemplation, Jane sits down with her laptop and types a five page document that gives her house and other assets to a local charity at her death. She calls both of her sisters and informs them that because they are financially secure, she wants to leave all of her assets to the charity at her death.  Jane's sisters are not only understanding, they also are supportive.  After she prints her "will," Jane signs the document in front of a friend, a local notary public, who notarizes Jane's signature on the document.

Prior to 2007, Virginia required strict formalities for executing a document in order for it to be considered a valid will. Sometimes these requirements could lead to results that were clearly not the author's intent. In the above example, even though Jane was competent and told her family she wanted to give her property to a charity after her death, she did not sign her "will" in front of two witnesses. As a result, Jane's "will" could not be admitted to probate. The courts would treat Jane's estate as if she had died without a will and direct her assets to be distributed according to Virginia law governing intestate succession.

In 2007, the Virginia General Assembly adopted Virginia Code 64.1-49.1, a provision of the Uniform Probate Code, commonly known as the "dispensing with formalities provision." This section provides Virginia courts with the power to deem documents and writings that are not in strict compliance of Virginia Code section 64.1-49 to be treated as validly executed, if it is established by clear and convincing evidence that the author intended the document or writing to constitute the author's will. In the above example, the circuit court could be petitioned within one year of Jane's death to invoke the Virginia Code's dispensing with formalities provision.

If the proponent of Jane's "will" proves by clear and convincing evidence that Jane intended the document to be her will, then the court can order it to be treated as such, even though the formal statutory requirements were not met. Ultimately, this would allow the document to be admitted to probate, allowing Jane's intentions to be carried out and her assets to be given to the charity, rather than forcing the court to ignore Jane's wishes.

Recently, the attorneys at Oast & Hook used the dispensing with formalities provision of the Virginia Code to successfully probate a document that allowed the true intentions of the author to be followed. In this case, a woman who had been diagnosed with a serious disease decided to leave her entire estate to her boyfriend of over 10 years upon her death, and she discussed this with various people, including members of her family. Using a form she obtained from a co-worker, she typed a document that she thought would act as a valid will. This woman signed the document, placed it in an envelope, and gave it to her family. After the woman's death, the envelope was opened, and it was discovered that the document she had typed and signed was not properly witnessed. The family was initially not allowed to probate the will because it did not meet the statutory formalities to be a valid will in Virginia. The family, however, knew it was the woman's intention to leave her estate to her boyfriend at her death. On behalf of her boyfriend, Oast & Hook filed a petition in the circuit court. The court found by clear and convincing evidence that the woman had intended the document to be her will.  The dispensing with formalities provision of the Virginia Code allowed the circuit court to rule that the document was the woman's will, thus honoring her intentions.

 For more information, in BNA's Tax Management Portfolios, see Marty-Nelson, Gilmore, and Rodriguez-Dod, 824 T.M., Testamentary Capacity and Validity of Wills,  and in Tax Practice Series, see ¶6150, Estate Planning.

Attorney M. Bradley Brickhouse joined Oast & Hook in 2009. He practices primarily in the areas of estate planning, guardianships, conservatorships, financial abuse, will contests, and estate and trust disputes.