Perhaps you’ve had someone tell you that you “should really think about getting a will,” or maybe you’ve had that thought yourself. But what exactly counts as a will? Can you simply write “the kids get all my stuff” on a napkin, file that away and check “make a will” off your to-do list?
Well, no. You’ll need a bit more than that. According to the Virginia Supreme Court and the Virginia Code, a will is a legally executed written declaration of your intentions for how you want your property disposed of after your death. Let’s go over a few ways that this hypothetical “napkin will” falls short of the legal standard for a will.
First, saying “The kids get all my stuff” does not make clear that you want them to get your stuff upon your death, and wills are intended to cover the disposition of your estate after you die. Leaving the death part out disqualifies this “napkin will.”
Second, the language on the napkin does not specify who gets what stuff, or if they all share it equally. Even if the napkin were to be considered a valid will (which it won’t), such vague language invites disputes regarding the proper interpretation of the words.
Third, the “napkin will” has not been “legally executed.” Virginia law requires wills to be signed by the “testator,” that is, the person whose intentions are being set out in the will. If the testator has written the entire will by hand and signs it, the will is considered valid as long as two witnesses who don’t stand to benefit from the will (disinterested witnesses) can attest to the fact that the testator wrote and signed the will. More common these days is for a testator to have someone else draft their will, and in that case, the law requires the testator to acknowledge or sign the will in front of two disinterested witnesses who are present at the same time. These witnesses then sign the will as well. To prevent later complications, most wills are also notarized. You can read more about the statutory requirements for legally executing a will in Section 64.2-403 of the Virginia Code.
The drafters of the Virginia Code set out these clear requirements for making wills, but they also understood that some people may fail to follow them when they attempt to set out instructions for how to dispose of their estate. So the Virginia Code allows a person to present evidence showing that the testator meant for a given document to serve as their will even if doesn’t otherwise meet the requirements for legal execution. The person making such a claim will need to do so within one year of the testator’s death. And with few exceptions, the writing proposed as the testator’s will needs to have been signed by the testator, so our “napkin will” is going to have a hard time being accepted even under this provision of the code. See Section 64.2-404 for more details.
Now let’s look at a fascinating case from 1911 in which the Virginia Supreme Court of Appeals shed more light on what counts as a legally valid will. George T. Smith had been working as a railroad freight conductor when he died. He left behind a widow, but no children. At first, the family thought that he had left no will, but soon his widow, Lula Smith, found a book in George’s trunk that the railroad had given him for tracking the arrival and departure times of trains. On the cover of the book, in George’s handwriting was written the following:
“Dec. 24, 1900 Every thing is Lous.
“G. T. Smith, 314 South Patrick St. Ax Va.”
Lula Smith argued that this writing on the cover of a railroad-issued record book, written and signed by George, constituted his will in which he intended to give everything to “Lou”–that is, to her.
A jury agreed with Lula, but the Supreme Court of Appeals did not. Here is how the court explained its reasoning:
The words, “Every thing is Lous.” which constitute the entire body of the paper here, are most reasonably to be interpreted as referring to an existing fact, and might under certain conditions be considered as having reference to a purpose on the part of the writer of those words to pass everything that he owned in the way of property to the ownership of “Lou, ” his wife, either by gift or devise; but there are no words of gift to be found in this paper and nothing from which it could be reasonably determined that the writer intended the paper as a disposition of his property to take effect after his death.
To make this a valid will, George needed to say more about what this document he was writing was intended to do. If he intended it to be his will, he needed to include words to that effect. See Smith v. Smith, 112 Va. 205, 70 S.E. 491 (1911).
So if you are thinking of writing a will, before you reach for the closest napkin, consider speaking with an estate planning attorney who can walk you through the steps to put together a plan that will give you peace of mind and avoid confusion down the road.
The Law Office of Levi Jones is here to answer your questions about wills and estate planning.