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Sometimes The Devil Is In The Details

John T. Midgett
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Over the past 40 years I have prepared thousands of wills. Each time the wills are organized in articles and paragraphs, all of the pages are numbered, the Testator’s initials are placed on the corner of each page, the will is signed at its logical end, and a self-proving affidavit is appended. All of these actions are designed to ensure that the wishes of the Testator (the person who makes the will) are followed and to reduce the possibility of fraud by the substitution of pages in a will.

Recently, a Circuit Court case in Nelson County highlighted the necessity of these safeguards. In the matter of Canody v. Hamblin, the Testator created his own will consisting of three computer generated pages of the same font and font size. There were no page numbers and no paragraphs were split between pages. When offered for probate, the three pages were stapled together and all of the staple holes line up for all three pages.

One of the Testator’s children raised the prospect that the first two pages of the will tendered for probate might have been substituted after the will was executed. This necessitated a lengthy and most likely expensive hearing on the validity of the will.

The Executor offered testimony of an unrelated party to confirm the Testator’s plan of distribution, as set forth in the will, and the Court allowed it when the genuineness of the will was put into question. In admitting the will to probate, the Court quoted Virginia law that has been in place for over 70 years, citing that there is no requirement for witnesses to read the will or examine it with care so as to say that all of the pages or clauses of the proposed will were the pages and clauses signed by the Testator in their presence.

While it is true that computers make forgery and substitutions of pages easier than when a will was written by hand or even by typewriter, the Court refused to revisit established Virginia law.

When offering a will for probate, the proponent of the will must prove compliance with all of the statutory requirements for the execution of a will and once that is done the challenger then has the burden of proving fraud. Simply stating that fraud is possible is not enough, as was the case in Canody v. Hamblin, to meet the clear and convincing standard of proof for fraud.

The lesson of this case is that while creating a will by an experienced professional is certainly more expensive than doing so on one’s own, the money saved today is a mere pittance when compared to the money necessitated to prove the validity of the will after death.

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Written By John T. Midgett

Shareholder

John T. Midgett is a Shareholder in the Law Firm of Midgett Preti Olansen. His practice is concentrated in the related areas of estate planning, administration and taxation, estate and trust litigation, and family business planning.

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