Common Will Dispute Scenarios in Virginia
Date: February 13, 2026
Will contests often arise when family members believe that a person’s will does not reflect the true intentions of the deceased person or that someone exerted undue influence. Will contests also often come about when a person makes a change to their will shortly before their passing, particularly when the person is elderly, sick or suffering from diminished faculties. Will contests often arise when close family members are suddenly disinherited or written out of a will in favor of another person. Sometimes that person is someone upon whom the testator (maker of the will) is dependent on for assistance with daily living tasks, transportation or financial management. Will disputes can arise when family members are disinherited in favor of the testator’s neighbor or friend. Will contests can involve formerly estranged family members of the testator “re-establishing” a relationship with the testator shortly before their passing and while they are seriously ill.
Common Grounds for a Will Contest
- Lack of Testamentary Capacity – Under Virginia law, a person must have testamentary capacity to execute a will.
The Supreme Court of Virginia has noted that “Neither sickness nor impaired intellect is sufficient, standing alone, to render a will invalid. If at the time of its execution the testatrix was capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wished to dispose of her property, that is sufficient.” Thomason v. Carlton, 221 Va. 845, 852, 276 S.E.2d 171, 175 (1981). Furthermore, “A less degree of capacity is requisite for the execution of a will than for the execution of contracts and the transaction of ordinary business.” Parish v. Parish, 281 Va. 191, 198, 704 S.E.2d 99, 103 (2011).
This means that the person must understand the nature of their property, their family relationships, the meaning of making a will and how they wish to dispose of their property. If a person lacks testamentary capacity, then the will can be invalidated. Notably, testamentary capacity is a lesser standard than “contractual capacity”, or the capacity required to enter into contracts.
If illness, dementia or incapacity prevented the person from having testamentary capacity, the will may be challenged. Will contest lawsuits involving an allegation of lack of testamentary capacity typically involve substantial investigation and discovery (which we discussed in a prior post) about the person’s medical, mental and physical condition. Medical providers can be crucial witnesses, as well as lay witnesses such as neighbors and friends.
This means that the person must understand the nature of their property, their family relationships, the meaning of making a will and how they wish to dispose of their property. If a person lacks testamentary capacity, then the will can be invalidated. Notably, testamentary capacity is a lesser standard than “contractual capacity”, or the capacity required to enter into contracts.
If illness, dementia or incapacity prevented the person from having testamentary capacity, the will may be challenged. Will contest lawsuits involving an allegation of lack of testamentary capacity typically involve substantial investigation and discovery (which we discussed in a prior post) about the person’s medical, mental and physical condition. Medical providers can be crucial witnesses, as well as lay witnesses such as neighbors and friends.
- Undue Influence – The Supreme Court of Virginia has noted that “The undue influence which will vitiate a will must be of such a character as to control the mind and direct the action of the testator. It must be sufficient to destroy free agency on the part of the ... testator; it must amount to coercion—practically duress.” Parson v. Miller, 296 Va. 509, 526, 822 S.E.2d 169, 178–79 (2018). When undue influence has been exercised upon a testator, the will can be challenged. Undue influence can occur when someone manipulates, threatens or pressures the testator into making or changing a will for their benefit.
- Fraud or Forgery – If a signature was falsified or the testator was misled about what they were signing, the will can potentially be invalidated.
- Improper Execution – Failing to adhere to Virginia’s statutory requirements, including requirements relating to witnessing and signing, can render a will invalid. Notably, Virginia law does have a “harmless error rule” mechanism when it comes to the execution of wills. See Virginia Code Section 64.2-404. Additionally, Virginia law has a procedure for the recognition of a holographic will (a will wholly in the testator’s handwriting). See Virginia Code Section 64.2-403.
Each ground for a will contest has different elements. If you are faced with a dispute involving the validity of a will in Virginia, you should promptly consult with an experienced will contest/estate dispute lawyer to determine your potential options.
About Our Team
Whiteford offers sophisticated, experienced counsel on estate, trust and fiduciary dispute matters, including will contests.
Brett C. Herbert is a partner at Whiteford, Taylor & Preston LLP and a member of the Estates, Trusts, & Fiduciary Litigation Practice Team. Brett can be reached at BHerbert@whitefordlaw.com and (804) 977-1242.
Gregory S. Bean is a partner at Whiteford, Taylor & Preston LLP and a member of the Estates, Trusts, & Fiduciary Litigation Practice Team. Greg can be reached at GBean@Whitefordlaw.com and (804) 977-1241.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.