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How To Contest a Will in Virginia

A will can be contested in a Virginia probate proceeding on a number of grounds.

Lack of Proper Formalities

A will can be contested in Virginia on the grounds that it was not executed with the proper formalities. In order to be a valid, a will in Virginia must be (1) in writing, (2) signed by the testator, or by some other person in the testator’s presence and by his direction, (3) in such a manner as to make it manifest that the name is intended as a signature. The testator must sign, or the will must be acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who sign in the presence of the testator. Va. Code Ann. § 64.2-403

Undue Influence

A will can be contested under Virginia law on the grounds of undue influence. Two situations exist in which a party may show undue influence. “First,a party may establish a prima facie case of undue influence upon proof of great weakness of mind and grossly inadequate consideration or suspicious circumstances.  Second,a party may establish a prima facie case of undue influence upon proof that a confidential relationship existed between the grantor and proponent of the instrument.”  Gelber v. Glock.

A confidential relationship can exist between a parent and child when accompanied by a principal-agent relationship and between family members when one handles the finances of another.  A confidential relationship can also arise when one party relies on another party for assistance with daily needs and activities.

Lack of Capacity

A will can be contested in Virginia on the grounds that the testator lacked testamentary capacity at the time the will was executed. Testamentary capacity exists “if at the time a will is executed, the testator is ‘capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wised to dispose of the property.’” Kiddell v. Labowitz.

The testimony of the witnesses at the time the testator executed the will is entitled to great weight, as is the testimony of drafting attorney and of attending physicians. Typically, lack of capacity is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.

Revocation

A will can also be contested in Virginia on the grounds that the will has been revoked. A will can be revoked in two ways in Virginia. The testator can, with the intent to revoke the will, cut, tear, burn obliterate, cancel or destroy the will, or the signature thereto. The testator can also revoke the will by executing another will expressly revoking the will or a part of the will. Va. Code Ann. §64.2-410.

How long do I have to contest a will in Virginia?

6 months, 1 year, or two years.  There are several different deadlines that apply to a will contest in Virginia, depending on the circumstances of the proceeding.

If the clerk has admitted the will to probate,any person interested in the probate of the will may appeal any such order within six months after entry. Va. Code Ann. § 64.2-445.

If the court has admitted the will, then an interested person who has not otherwise been before the court or clerk may file a complaint to impeach or establish the will within one year from the date of the order entered by the court.

If an interested person was proceeded against by publication, the deadline is two years. Va. Code Ann. § 64.2-448.

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