Legal Question in Wills and Trusts in Virginia

Re: Time period to contest a will

Va. Code Sec. 64.1-88 has been correctly detailed by attorney DeCaro but, unfortunately, it would appear that he has incorrectly applied it to the facts of your particular situation in regard to the time permitted you to mount a challenge to your mother's will. This statute clearly appears to apply only to interested persons who were not parties to proceedings from which orders issued either under Va. Code Secs. 64.1-85 or 64.1-77.

Assuming that you were such a party(to a proceeding which most likely resulted in an order under Va. Code Sec. 64.1-77), given the fact that you were apparently a named beneficiary in your mother's will and undoubtedly were given notice of the probate proceeding which likely resulted in the aforementioned order, then your time to appeal this order and to mount a challenge to your mother's will would have been the six months referenced in Va. Code Sec. 64.1-78 rather than the one year cited in Sec. 64.1-88 which was referenced by attorney DeCaro in his posted response.

Re: Time period to contest a will

The relevant portions of the Virginia Code are

listed below. Essentially, you have one year

after the will is accepted by the probate clerk

within which to file suit to contest the will.

Just becasue a will was signed near death and

is unfair does not alone make the will subject to

being set aside.

You may call us for a no-obligation consultation

on whether you have a valid objection to the

will.

Va. Code Ann. � 64.1-88

West's Annotated Code of Virginia Currentness

Title 64.1. Wills and Decedents' Estates

Chapter 3. Wills (Refs & Annos)

Article 4. Probate (Refs & Annos)

� 64.1-88. Bill to impeach or establish a will

After a decree or order under � 64.1-85 or under

� 64.1-77, a person interested, who was not a

party to the proceeding, may proceed by bill in

equity to impeach or establish the will, on which

bill a trial by jury shall be ordered to

ascertain whether any, and if any how much, of

what was so offered for probate be the will of

the decedent. The court may also, if it deem

proper, require all testamentary papers of the

same decedent to be produced and direct the jury

to ascertain whether any, or if there be more

than one which, of the papers produced, or how

much of what was so produced, be the will of the

decedent.

Va. Code Ann. � 64.1-89

West's Annotated Code of Virginia Currentness

Title 64.1. Wills and Decedents' Estates

Chapter 3. Wills (Refs & Annos)

Article 4. Probate (Refs & Annos)

� 64.1-89. When bill must be filed and where

If the decree or order be made by the court in

the exercise either of its original jurisdiction

or an appeal from the clerk, such bill shall

be filed within one year from the date of such

order made by the court. If no appeal be taken

from a decree or order made by the clerk under

� 64.1-77, the bill shall be filed within one

year from the date of such order or decree by

the clerk. If no such bill be filed within that

time, the decree or order shall be forever

binding. The venue for filing a bill under

� 64.1-88 shall be as specified in subdivision

7 of � 8.01-261.

Re: Time period to contest a will

You raise a number of different issues. First, I assume from your question that the will was probated in Virginia. Second, of course a will must be changed with some formality to be valid, so I don't know about that. Also, I am surprised that the executor lives in N.C. because one must either be a resident of Virginia or have a Virginia agent or attorney working with the executor.

Anyway, assuming that you and your sister receive the house after 12/05, you have rights as to something called "waste." This very down-to-earth term is actually a legal term of art with a precise legal meaning. The second husband is obligated to maintain the house in its current state and to deliver it in good condition. He would be legally liable to you for any damage if you had to spend money to repair it, except for very normal wear and tear (such as a renter in an apartment is liable to keep a rented apartment in reasonably good condition).

You also ask about what belonged to you as children. This requires some more information. I would presume that the language in the will gives the second husband the right to live in the house, but not to all of the contents of the house. However, I don't know what the will says, of course. Assuming that you are entitled under the will to these items of "personal property" (which is anything other than real estate), and assuming that the language of the will simply gives the second husband the right to LIVE in the house, his living there would not prevent you from taking your items of personal property out of the house.

The critical issue is what the will actually says and who gets these items.

In addition, the executor is required to file an inventory of all of this property in the court. If the required inventories are not being filed by the executor, you can challenge this and demand that they be filed.

I'm less certain about your right to enter the house. If the will says that the second husband has the right to "LIVE" there (as opposed to owning the house during that period), then I think he would have no right to keep you out of the house, provided your entering did not interfere with him "LIVING" there. Therefore, I would be very restrained in entering the house, only with lots of advance notice and only very rarely. Also, your right to enter the house would NOT necessarily or automatically mean that you have a right to take anything out of the house. That would be determined by the exact wording of the will, as discussed above. However, you would have a right, I believe, to document the condition of the house and (rarely) check up on whether it is being maintained properly.