Detailed Answer
When a decedent’s will is found not to have been properly signed, the probate court may refuse to admit that document as a valid will. Under Virginia law, that outcome typically means the estate will be distributed under Virginia’s intestacy rules unless the court admits some other valid testamentary document or the heirs reach a settlement. This section explains why an improperly signed will can be rejected, what happens next, and what options interested persons typically have.
What makes a will “properly signed” in Virginia?
Virginia requires certain formalities for a will to be valid. Generally, a valid will must be in writing, signed by the testator (or by another person in the testator’s conscious presence and by the testator’s direction), and witnessed by two competent witnesses who sign within a reasonable time of witnessing the testator’s signing or acknowledgement. See Virginia Code, Title 64.2 (Probate, Wills, Trusts and Fiduciaries) for the statutory framework: https://law.lis.virginia.gov/vacode/title64.2/. The court also recognizes “self-proved” wills when the required acknowledgments and notary certifications are present.
Why would a court treat a will as invalid?
Common execution defects that can lead a court to treat a will as invalid include:
- No signature by the testator (or a valid signature on the testator’s behalf)
- Insufficient number of attesting witnesses
- Witnesses who were not present or not competent when the testator signed or acknowledged the will
- Evidence that the signature was procured by fraud, duress, or undue influence
What happens if the court finds the will invalid?
If the court refuses to admit the document as a valid will, the usual consequences are:
- Intestate succession: The decedent’s probate estate will be distributed according to Virginia’s intestacy laws (distribution to surviving spouse, children, parents, siblings, etc.). For the statutory rules on intestate distribution, see Virginia Code, Title 64.2, Chapter 3: https://law.lis.virginia.gov/vacode/title64.2/chapter3/.
- Appointment of an administrator: Instead of a personal representative named by the will, the court will appoint an estate administrator (sometimes called an administrator with or without will annexed) under the priority rules in the probate code.
- Loss of testamentary dispositions: Gifts and appointments in the invalid will generally fail. Property goes where the intestacy statute directs unless alternate valid documents exist.
- Possible disputes and litigation: Heirs or beneficiaries may contest the invalidation (for example, by presenting additional evidence that the document was properly executed or that the testator intended the document to operate as a will).
Are there ways to save a defective will?
Some states allow admission of an improperly executed will when extrinsic evidence clearly shows the decedent’s testamentary intent. Virginia’s probate code and courts focus on compliance with execution formalities, and the ability to “cure” a defect depends on the facts and the court. If witnesses can provide credible testimony or affidavits showing the testator signed and intended the document to be a will, the court may consider that evidence when deciding whether to admit the document. Relevant statutory provisions and procedural mechanisms are in Title 64.2: https://law.lis.virginia.gov/vacode/title64.2/.
Practical consequences for heirs and beneficiaries
- If the will fails and intestacy applies, beneficiaries named only in the invalid will may get nothing from probate assets.
- Nonprobate transfers (joint accounts, beneficiary designations on retirement plans or life insurance, property held in a trust) pass according to their own rules and are not controlled by the will.
- Family members who would inherit under intestacy may need to start or respond to an administration proceeding to collect assets, pay debts, and request distribution.
What steps should you take if a will appears invalid or is being challenged?
- Preserve the original document and evidence: Keep the original will, any drafts, and related documents safe. Gather contact information for people who witnessed the signing, notarized the will, or helped prepare it.
- Gather proof of the decedent’s intent: Witness affidavits, contemporaneous notes, and communications can help show intent if you plan to ask the court to admit the document despite a technical defect.
- Ask the probate court about filings and deadlines: Probate rules set filing timelines and notice requirements. Missing a deadline can affect rights in the estate.
- Consider negotiation or mediation with likely heirs: Often parties can reach a settlement that avoids prolonged litigation.
Because outcomes turn on specific facts and procedural details, anyone involved in a disputed probate should talk to an attorney who handles Virginia probate and estate litigation. A lawyer can explain whether the purported will might be admitted despite defects, whether intestacy will apply, and how to protect your rights during administration.
Disclaimer: This article explains general principles of Virginia law and is for educational purposes only. It does not provide legal advice. Consult a licensed Virginia attorney about your specific situation.
Helpful Hints
- Find the original will. Courts usually want the original document, not a copy.
- Locate witnesses. Affidavits or testimony from the attesting witnesses can be decisive.
- Check beneficiary designations. Retirement accounts and life insurance pass outside a will by contract.
- Don’t destroy or alter the will. Tampering can create criminal exposure and undermine any later attempt to admit the document.
- Act quickly. Probate deadlines and statutes of limitation can affect challenges and filings.
- Collect supporting evidence of intent: drafts, emails, letters, and contemporaneous statements can help if the will’s execution is disputed.
- Consider alternatives to litigation. Mediation or an agreed administration can save time and expense.
- Use the Virginia Code for reference: https://law.lis.virginia.gov/vacode/title64.2/ (probate, wills, trusts, and fiduciaries).