Law of Wills, 2016A

Chapter Eleven: Attested Wills
11.1 Introduction
Most jurisdictions that have will statutes that are pretty similar. The only differences lie in
the number of attesting witnesses that are required. The will execution process is a solemn ceremony
that must be taken seriously. The legislatures want the testator to go through a ritual, so that it is
clear that the testator is making a thoughtful disposition of his or her property. The testator usually
has to sign or acknowledge his or her will in the presence of two or more disinterested witnesses. 89
The main components of a valid will execution are (1) a writing, (2) signature by the testator and, (3)
attestation by witnesses. Most of the litigation challenging the validity of the will execution process
involves one or all of these elements. Therefore, the three parts of this chapter include cases
analyzing those issues. Some states require the testator’s signature to be at the end of the will. This is
referred to as a subscription. In a few states, the testator is required to publish his or her will by
telling the witnesses that the written instrument is his or her will.
Va. Code Ann. 64.2-403. Execution of wills; requirements
A. No will shall be valid unless it is in writing and signed by the testator, or by some other person in
the testator's presence and by his direction, in such a manner as to make it manifest that the name is
intended as a signature.
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C. A will not wholly in the testator's handwriting is not valid unless the signature of the testator is
made, or the will is acknowledged by the testator, in the presence of at least two competent
witnesses who are present at the same time and who subscribe the will in the presence of the
testator. No form of attestation of the witnesses shall be necessary.
11.2 Writing
The writing requirement comes from the Statute of Frauds and the Wills Act. The purpose
of the writing mandate is evidentiary. At the time the will is submitted for probate, the testator is no
longer available to be questioned by the court. The best evidence of the testator’s intentions is the
written instrument. What constitutes a writing? When the original Wills Act was enacted, the answer
to that question was relatively easy. Nonetheless, times have changed and the manner in which
people communicate is evolving. This may complicate the wills writing requirement. Is a text
message a writing? What about an email? At least one state legislature permits electronic wills.
N.R.S. 133.085. Electronic will (Nevada)
1. An electronic will is a will of a testator that:
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La. Civ. Code Ann. art. 1577 (2016)(requires two witnesses and a notary.)
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