A valid will under West Virginia law must be:
- In writing;
- Signed by the testator
- Properly attested and subscribed by two witnesses.
The requirements to make a valid West Virginia will are found at WV Code § 41-1-3.
Who Can Make a Valid Will In West Virginia?
Any person of sound mind and eighteen years or older is capable of making a valid will under West Virginia law. WV Code § 41-1-2. The will can dispose of any estate to which the testator would be entitled at his death. WV Code § 41-1-1.
To be of sound mind to make a valid will under West Virginia law, a testator must:
- Understand the nature of the testator’s business (what they are doing);
- Have a recollection of the testator’s property of which the testator intends to dispose;
- Know the objects of the testator’s bounty;
- Know the way the testator wishes to distribute the property.
The threshold for testamentary capacity in West Virginia is lower than the capacity required to make a deed or enter into a contract.
A West Virginia Will Must Be Signed
Under West Virginia law, a will is required to be signed by the testator OR by some other person in the testator’s presence and by his direction, in such manner as to make it manifest that the name is intended as a signature.
It is generally preferred that a testator sign the will himself. However, if the testator is physically unable to sign the will, West Virginia law recognizes a will signed by someone else in the testator’s presence and by his direction as a valid document.
A West Virginia Will Must Be Properly Witnessed
Unless the will is entirely in the handwriting of the testator, the will must be properly witnessed in order to be recognized as valid under West Virginia law.
To be properly witnessed the testator must sign the will, or acknowledge the will, in the presence of at least two competent witnesses. The witnesses must be present at the same time, and must sign the will in the presence of the testator and of each other.
To see the rules regarding the competency of witnesses to a will under West Virginia law, see WV Code, Chapter 41, Article 2.
Does a West Virginia Will Have To Be Notarized?
No, a will does not have to be notarized in order to be valid under West Virginia law. However, a will can be made self-proving, which requires the signing of an affidavit stating such facts as would be required in court to establish and prove the will. WV Code § 41-5-15.
A self-proving will can be admitted to probate in West Virginia without the testimony of the witnesses.
The best way to make sure that you have created a will that is valid under West Virginia law is to work with a West Virginia probate lawyer.
