Wills and Legal Formalities

When drafting a will, consult with an attorney to ensure the document’s validity.

Church Law & Tax Report

Wills and Legal Formalities

When drafting a will, consult with an attorney to ensure the document’s validity.

Key point Wills and other testamentary documents must be drafted and executed in compliance with applicable law to be legally enforceable.

The Virginia Supreme Court ruled that a church member’s will, that left the bulk of her estate to her church, was valid even though the witnesses’ names were printed without signatures. An elderly church member (“Cora”) executed a will naming her church as her primary beneficiary. According to the terms of the will, the church received Cora’s home and several substantial bank accounts. The will was executed in the presence of a notary public who printed the names of three witnesses, without signatures, below Cora’s signature. Attached to the will was a “self-proving affidavit,” which was signed by a notary public and all three witnesses, and which affirmed that Cora signed the will in the presence of the witnesses as her free and voluntary act.

Following Cora’s death, the church submitted her will for probate. However, a court clerk refused to admit the will on the ground that it was not properly witnessed “since where signatures of the witnesses should be, the names of the witnesses are printed.” Cora’s nearest relatives also opposed the admission of the will to probate. One of these relatives was the sole “residuary beneficiary” under the will who would receive Cora’s estate in the event that the will was rejected for probate.

A trial court rejected the will for probate on the basis of the following statute: “No will shall be valid unless it be in writing and signed by the testator … and moreover … the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” According to the trial court, the witnesses did not “subscribe the will in the presence of the testator” because they failed to sign the will below Nora’s signature. Their printed names without signatures were insufficient.

The state supreme court reversed the trial court’s ruling and ordered the will to be admitted to probate. It acknowledged that the witnesses did not affix their signatures at the end of the will itself, but concluded that their signatures at the end of the self-proving affidavit attached to the end of the will was sufficient. It noted that “the literal meaning of the word ‘subscribe,’ as used in the statute, is ‘to write underneath; sub, under; scribere, to write.'” The court concluded that the witnesses’ signatures at the end of the self-proving affidavit that had been attached to the end of the will satisfied the statute’s requirement that the witnesses “subscribe the will in the presence of the testator.” It observed:

The purpose of the statute in requiring subscription of a will by competent witnesses in the presence of the testator is to prevent fraud, deception, mistake, and the substitution of a surreptitious document. These requirements, however, are not intended to restrain or abridge the power of a testator to dispose of his property. They are intended to guard and protect him in the exercise of that power. The safeguards of the statute are not designed to make the execution of wills a mere trap and pitfall, and their probate a mere game. Additionally, the witnesses’ subscription establishes and proves that the testator’s signature is genuine. Even though the requirements in [the statute] must be strictly followed, the statute must not be construed in a manner that would increase the difficulty of the transaction to such an extent as to practically destroy” an uninformed layperson’s right to dispose of property by will.

Application. It is important that all applicable legal formalities be satisfied in the execution of a will. It is for this reason that church leaders should not rely on will kits and other “homemade” documents in assisting members with their estate plans. The services of an attorney should always be utilized to ensure the validity of the document. Hampton Roads Seventh-Day Adventist Church v. Stevens, 657 S.E.2d 80 (Va. 2008).

This Recent Development first appeared in Church Law & Tax Report, January/February 2009.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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