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.
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;
or
(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.