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(Almost) Everything You Need to Know About Contesting a Will in Virginia

When an individual dies, many legal, financial, and personal affairs must be settled. In certain instances, directives for how such matters will be resolved are contained in a document known as a will, or in legal terms, a Last Will And Testament. That said, not all will proceedings proceed smoothly, and families might contest the validity of such documents.

The Obenshain Law Group, serving people throughout the Virginia region, invite prospective clients and interested parties to read this brief blog discussing pertinent information about wills and the contesting process.

The Definition Of A Will

A will is a legally-binding document that provides direction regarding how the deceased's final affairs are to be resolved. For example, the document might include but are not necessarily limited to instructions on how to settle issues such as:

  • Debt repayment

  • Remaining asset allocation

  • Business operating instructions

  • Property distribution

Also, the document usually uncovers who the decedent (deceased person's) legal heirs, as well as identifies the individual designated to assume the role of Executor. That person is responsible for carrying out the decedent's instructions. The Executor might be asked to perform duties such as notifying all pertinent heirs of the will's existence, repaying the decedent's debts, distributing remaining assets to rightful heirs and paying the decedent's final year of income taxes and any taxes accumulated by the decedent's estate.

What Makes A Will Valid In Virginia?

In many instances, a will is not difficult to write but must meet specific criteria to be considered valid and legal by an adjudicating body. In the State of Virginia, a valid will is one that:

Is documented in the written form entirely by the testator, meaning a handwritten will can be considered legitimate and enforceable as long as the testator wrote and signed the will
  • The deceased family member must date and sign the will

  • The will was signed and witnessed by two or more individuals at the same time as the testator

Though not a legal requirement, many wills are written by the testator (the individual authorizing the will) with the assistance of an attorney. Moreover, said legal professional often acts as a witness and signs the document on their testator's behalf.

Grounds For Contesting A Will

Purported heirs or relations of the decedent may contest the will in question for a variety of reasons. In some instances, this maneuver is undertaken by estranged relatives who are left out of the will and hope that said actions allow them to recoup assets they feel they are entitled to recover.

However, wills are also contested on other bases, which may include:

  • The will was signed under intimidation or duress

  • The document's provisions are unusual

  • The will was forged

  • The document was not valid because it failed to comply with the statutory requirements in Virginia

  • The decedent was not in the proper state of mind to render such essential decisions, also known as lack of testamentary capacity

  • Undue influence occurred, which means a third party influenced an individual's will to themselves

Testamentary Capacity

When someone signs a will, they must have testamentary capacity. Without it, a will can be refused or set aside. For someone to have testamentary capacity, the following must be true:

  • Be over the age of 18

  • Must understand what they are doing and signing

  • Must know the family members they are willing assets to in their will

  • Must know the amount and extent of the assets and property they have

  • Must understand the will and its provisions

Undue Influence

Often undue influence claims happen in cases where a child prepares their parent's will and leaves themselves a more significant inheritance than they might have otherwise received. Undue influence can be hard to prove, but a case might be valid on the presumption that undue influence occurred under the following circumstances:

  • There was a prior will that showed the testator had another plan regarding the disposition of their assets

  • The person exerting undue influence was active in procuring the will or causing it to be prepared

  • There was a confidential or fiduciary relationship between the testator and the person who has exerted undue influence

  • The testator had a mental condition that was compromised

Each case can present a unique set of reasons why a will might be challenged. Hiring an experienced Virginia will contest attorney can help you sort through these unique challenges.

The Contesting Process

Virginia State law requires that wills may only be contested by individuals who prove they meet the "interested person" criteria. An interested person is someone claiming to have some established relationships with the decedent and possess a financial need and not just someone who expects to be handed a share.

Individuals who meet these criteria can then contest the will by identifying the grounds for the challenge and file a bill establishing a formal contest of the will. They will then await a hearing in which an adjudicating body will decide on the claim of the individual(s) in question.

In Virginia, there is a time limit when it comes to contesting wills. For many will contests, the time limit is one year from the date the will was probated. Although, in some cases, the time may be shorter. Speaking with a will contest attorney as soon as possible ensures you can challenge the will in time.

Contact a Will Contest Attorney

At Obenshain Law Group, we handle cases of will contests. Interested parties who believe the will of a loved one is invalid or should be contested on other grounds are encouraged to contact us. Our team of experienced attorneys will review your case and offer advisement on the best ways to proceed.

Contact Obenshain Law Group online or call us at (540) 318-7360 for help contesting a will.

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