Virginia’s Harmless Error Rule May Permit a Will that Doesn’t Meet the Conventional Formalities to be Probated

Virginia has a version of the “harmless error rule” that may permit a will to be probated even if it does not strictly comply with the conventional formalities required for a writing to constitute a valid will.

Traditionally, Virginia, like most states, required all wills to strictly comply with the legal requirement rules set forth in the code for when a writing can constitute a valid will. Any deviation, even if minor, usually meant that clerks and courts would not admit the will to probate as a valid will. That often led to some harsh results.

Gordon & Rees Estate and Trust Litigation practice group In 2007, the Virginia General Assembly adopted the precursor to what is now Virginia Code Section 64.2-404. The current law is based on a provision contained in the Uniform Probate Code referred to as the “Harmless Error” Rule (Section 2-503). Virginia’s provision is a bit more restrictive than the provision in the Uniform Probate Code, but it nonetheless significantly relaxes the traditional requirements for what constitutes a valid will under Virginia law.

Conventional Formalities

Before we examine the law, let’s look at the conventional formalities. Under Virginia Code Section 64.2-403, a will has to fall within one of two categories in order to constitute a valid will under the conventional formalities:

(1) it’s (a) in writing, (b) signed by the testator (the person making the will) or another person in the testator’s presence and by his direction, in a manner as to make it manifest that the name is intended as a signature, and (c) the testator’s signature is acknowledged by at least two competent witnesses who are present at the same time and who sign the will in the presence of the testator;


(2) it’s entirely in the testator’s handwriting and signed by him, and the handwriting and signature are proved by at least two disinterested witnesses.

Harmless Error Rule

The Harmless Error Rule, in Virginia Code Section 64.2-404, relaxes the conventional formalities. It provides:

A. Although a document, or a writing added upon a document, was not executed in compliance with § 64.2-403, the document or writing shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

B. The remedy granted by this section (i) may not be used to excuse compliance with any requirement for a testator’s signature, except in circumstances where two persons mistakenly sign each other’s will, or a person signs the self-proving certificate to a will instead of signing the will itself and (ii) is available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent’s date of death and in which all interested persons are made parties.

Under this code section, litigants have a much easier task when it comes to trying to establish a writing as a valid will. It relaxes almost all of the conventional requirements with the exception of the requirement that the writing contain the testator’s signature.

In exchange for the relaxed legal requirements, the proponent of the will has to satisfy some additional hurdles. The proponent has a burden of proof of “clear and convincing” evidence, compared to the normal lower standard of a “preponderance” of the evidence. Also, the proponent has to bring a court proceeding within one year from the decedent’s passing and name all interested parties in that proceeding.

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