Henrico, VA asked in Probate and Estate Planning for Virginia

Q: What happens if one of the witnesses to a holographic will dies before the person who wrote the will?

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2 Lawyer Answers

Richard Sternberg

  • Estate Planning Lawyer
  • Potomac, MD
  • Licensed in Virginia

A: If it was executed correctly, it's a self-proving will signed by two or three witnesses before a notary public, and it is no problem at all. If the testator went the lawyer-free way, Virginia Code § 64.2-403(B) provides that: "A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses." So, if the will cannot be proved by at least two disinterested witnesses, then the Virginia Code § 64.2-403(C) provides that: "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." Both parties, the proponent of the will and anyone hurt by the will as compared to their intestate or prior will provisions should get counsel, which will cost much, much more than a proper drafting.

James H. Wilson Jr.

  • Estate Planning Lawyer
  • Glen Allen, VA
  • Licensed in Virginia

A: Virginia recognizes the validity of holographic will. A true holographic will, written entirely in the handwriting of the testator, does not require two witnesses at time of execution; however, two disinterested witnesses are necessary to prove the will, but these witnesses may or may not have been witnesses to the execution. For example, a disinterested witness may recognize the handwriting of the testator or have been told by the testator that he wrote his own will, even though the witness was not present for execution.

As my esteemed colleague noted, if the will is not entirely handwritten, it must comply with the statute of wills and be executed in the presence of two witnesses. A will may still be proven and probated even though one of the witnesses has predeceased the testator.

Virginia allows for ex parte probate before the clerk of the court. The clerk may not recognize a questionable will, such that the proponent will be required to file a court proceeding for recognition of the validity of the will and probate.

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