Formalistic Requirements for a Will

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid, Inc.

Planning for the future often brings peace of mind, and one of the most important steps in that process is preparing a valid will. A will allows for a clear expression of one’s desires regarding property distribution, who shall be the guardian of minor children, and who shall manage one’s estate. However, even a carefully written will may legally fail if it does not meet the four formal legal requirements.

First, the will must be in writing. Oral wills are not generally recognized under West Virginia law except in rare and limited circumstances (e.g., oral wills involving the personal property of soldiers or mariners). A holographic will (i.e., handwritten will) may be valid, but only if all the other formal requirements are also met.

Second, the will must be signed by the person making the will (i.e., the testator). If the testator is physically unable to sign, another person may sign on the testator’s behalf, but this must be done in the testator’s presence and under the testator’s direction.

Third, the will must be published. In this context, publication means the testator makes it known to the witnesses that the document they are signing is a will. This may be done verbally or by the testator’s conduct, but the witnesses must clearly understand that they are witnessing a will.

Fourth, the will must be attested and signed by at least two competent witnesses. These witnesses must sign the will in the presence of the testator and each other. This requirement exists to prevent fraud, coercion, or forgery.

Not just anyone may serve as a witness. Witnesses must be legally competent, meaning they must be of sound mind and understand what it means to serve as a witness. Witnesses must be disinterested and not be beneficiaries under the will. If a person who receives a gift under the will also serves as a witness, West Virginia’s purging statute may eliminate that gift unless there are two other disinterested witnesses. This is intended to avoid any suggestion of improper influence or conflict of interest.

Unlike some states, West Virginia does not recognize a harmless error rule. In jurisdictions that follow the harmless error approach, courts may forgive technical mistakes if the testator’s intent is clear. West Virginia law does not allow such flexibility. A will that fails to comply with the formal requirements may be found invalid, even if the testator’s intent is obvious. This makes strict compliance essential.

Understanding what constitutes a will is also important. The doctrine of integration allows courts to treat multiple pages as one complete will if the pages were physically present at the time of execution and appear to belong together. All pages should be securely fastened and clearly numbered. The testator and the witnesses should sign or initial each page if possible to make it harder for anyone to tamper with the document after it is signed.

West Virginia also follows the doctrine of incorporation by reference. This doctrine allows a separate document to be treated as part of the will if it is clearly identified in the will, was in existence when the will was signed, and if the testator intended it to be incorporated. For example, if the will refers to a separate document that describes who should receive a family heirloom or a piece of property, that document can be treated as part of the will if the legal conditions are met.

Preparing a valid will is one of the most thoughtful and protective actions a person can take for their loved ones. It is important to follow West Virginia’s legal requirements carefully to ensure your wishes are honored. Seniors should consider working with an attorney who can guide them through the process and help avoid common pitfalls. For further aid, please contact a licensed attorney. West Virginia Senior Legal Aid is dedicated to defending West Virginia seniors’ rights.