Challenging a Will in Virginia

There are generally two claims for challenging a will in Virginia.  First, a person may challenge the validity of a will on the grounds that it was procured through undue influence.  Second, a person may challenge the validity of a will on the grounds that the testator lacked testamentary capacity at the time the will was executed.

A claim of undue influence must be proved by clear and convincing evidence.  A presumption of undue influence arises if the petitioner can show that the testator was weak of mind at the time he executed the will, that there was a confidential relationship between the testator and the person exerting undue influence and that the testator had previously expressed a different intention regarding the disposition of his estate.  If these three things are shown the burden shifts to the proponent of the will to show that there was no undue influence.   

One Virginia Supreme Court opinion stated that for there to be undue influence “[t]here must be manifest irresistible coercion which controls and directs the testator’s actions.”  Note that the influence must be undue, which is to say that the influence must have been of such force that it compelled the testator to sign the will even though he knew that the document did not state his true intentions.

To successfully challenge a will on the grounds that the testator lacked testamentary capacity a petitioner must prove that at the time the testator signed the will he lacked the mental capacity to understand what he was signing.  A person has the requisite testamentary capacity if at the time he signs the will he (1) understands the nature of the business in which he is engaged, (2) has the capacity to know the property which he is disposing of in his will, (3) knows the natural objects of his bounty and (4) knows the manner in which he wishes to distribute his estate. 

It is important to consider what will happen if the will is invalidated before moving forward with a suit to impeach a will.  If a will was executed prior to the execution of the challenged will, the petitioner will want to make sure that he or she is a beneficiary under that prior will.  If there is no other will, the petitioner will want to make sure that the amount he or she will recover under the laws of intestacy in Virginia justifies the cost of litigation.

In addition to the economic costs that need to be considered, the petitioner also needs to recognize and understand the detrimental effect a lawsuit will have on his or her family.  In most situations, a suit to impeach a will pits family members against one another in a long, drawn out battle that will most likely cause irreparable damage to relationships.

MartinWren, P.C.’s transactions attorneys handle Commercial and Residential Real EstateEstate Planning and AdministrationBusiness and Corporate Law, and Intellectual Property and Technology LawMartinWren, P.C. also operates the Virginia Personal Injury Lawyers group.  For more information about any of these services, please contact G. Raye Jones at (434) 817-3100 or by email at jones@martinwrenlaw.com.

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