ElderLaw News

ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President.

Wills – Dispensing with Formalities

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 thirty 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 probated, 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.

The attorneys at The Estate Planning & Elder Law Firm, P.C. can assist clients and their families with these types of issues requiring litigation, as well as their estate, financial, investment, veterans’ benefits, life care, and special needs planning issues.

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The Estate Planning & Elder Law Firm, P.C.

The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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