A will is a legal declaration as to how you wish for your estate, which consists of your land, personal property, and/or debt, to be transferred after you die. There are three main types of wills recognized in West Virginia: general wills, holographic wills, and oral wills. The statutory requirements that ensure the validity of each type of will are not the same, so it is important that you understand the type of will you wish to make and the laws you must follow to guarantee that your will is valid.
For all wills, the testator must be 18 years old or older and of a sound mind at the time of creation. Wills that are typed and/or prepared for you, either using a form or the services of a lawyer, require all of the following five things to be valid:
•the testator must be of sound mind
•the testator must be 18 years old or older
•the will must be in writing
•the will must be signed by two witnesses
•the will must be signed by the testator
To be of sound mind to make a will, you must know your property, know how you are distributing your property, and know to whom you are leaving your property. Note that it takes less mental capacity to make a will than to make a deed or contract. Even if a testator lacks the capacity to perform many ordinary business transactions, as long as he/she meets the five listed criteria above, the will is valid.
The testator’s signature does not necessarily have to be the testator’s full name; a mark that is meant to be a signature is sufficient. Also, if needed, another person may steady the testator’s hand. The witnesses and the testator must all see each other sign. The witnesses do not need to know anything about the contents of the will.
Remember, the five requirements listed above only apply to wills that are typed and/or prepared for you by another person. The five requirements do not apply to holographic wills or oral wills.
For more information, see: W. Va. Code §§ 41-1-1 to -10 (2015); Milhoan v. Koenig, 196 W. Va. 163, 469 S.E.2d 99 (1996) Runyon v. Mills, 86 W. Va. 388, 103 S.E. 112 (1920); McMechen v. McMechen, 17 W. Va. 683 (1881); Freeman v. Freeman, 71 W. Va. 303, 76 S.E. 657 (1912) (overruled on other grounds by Meadows v. Meadows, 196 W. Va. 56, 468 S.E.2d 309 (1996)); Barker v. Hinton, 62 W. Va. 639, 59 S.E. 614 (1907); 20 Michie’s Jurisprudence Wills §30 (2010); Rice v. Henderson, 140 W. Va. 284, 83 S.E.2d 762 (1954); Stewart v. Lyons, 54 W. Va. 665, 47 S.E. 442 (1903); Nicholas v. Keshner, 20 W. Va. 251 (1882); Woodville v. Woodville, 63 W. Va. 286, 60 S.E. 140 (1908) (overruled on other grounds); Payne v. Payne, 97 W. Va. 627, 125 S.E. 818 (1924); Kerr v. Lunsford, 31 W. Va. 659, 8 S.E. 493 (1888); 20 Michie’s Jurisprudence Wills §§ 9-11 (2010).