This article's thesis is that if it can be established by clear and convincing evidence (i) that a writing was intended to be a will, (ii) that the putative testator had the requisite capacity, and (iii) that the writing was not the product of fraud, duress or undue influence, then the writing ought to be admitted to probate as a will, even though it might fail to comply with some of the formalities contained in the statute of wills. Those who accept this thesis will agree that the present practice ofrequiring strict compliance with the formalities of the statute of wills is a dysfunctional aspect of the wealth transfer process that should be eliminated. It is submitted that (i) a dispensation power like that contained in the Uniform Probate Code is the only realistic solution to this problem, and that (ii) the courts of the Commonwealth can be trusted to exercise such a power with the same discernment they presently exercise in the numerous other instances where they have extensive control over the life, liberty and fortunes of the people. Accordingly, the language of the dispensation statute included herein is respectfully submitted to the Virginia General Assembly for its consideration in the 1992 Session.

Document Type


Publication Date

Winter 1992