What Constitutes Substantial Compliance in Virginia Wills?

by Elizabeth Rayne
A will in Virginia is not valid without the testator's signature.

A will in Virginia is not valid without the testator's signature.

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While it's easier for everyone if a will strictly complies with the law, Virginia courts allow a bit of wiggle room to ensure the decedent's wishes are carried out. If a will is found to be invalid, the decedent's assets will not pass according to the terms of his will, but instead under the intestacy laws set forth in Virginia statutes.

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Requirements for a Will

In Virginia, a valid will must be signed by the testator, the person who drafted the will, in the presence of two witnesses. The witnesses must also sign the will in the presence of the testator. However, if the will is completely handwritten -- a holographic will -- it does not need to be signed by witnesses, but only signed and dated by the testator.

Substantial Compliance

In some cases, if the testator did not quite meet the state's requirements for properly drafting a will, the probate court will still find the will to be valid if it at least substantially complies with the law. Virginia courts err on the side of strictly following the rules in the statute. If the will only has one witness, for example, this is not considered substantial compliance and the will is likely invalid. But if a witness fails to sign on the appropriate spot on the will, yet still makes an effort and signs on a different page, for instance, the court will likely find this to be substantially compliant with the law and validate the will.