Prior Correspondence: A Key Tool in Preparing Your Estate Dispute Case for Trial

Technology, particularly relating to communication, is ubiquitous and ever-expanding in scope and ability. From text messaging to social media, there are seemingly more ways to communicate now than ever before.

Is that correspondence admissible at trial?

Trials are governed by the rules of evidence. These rules are detailed, nuanced, and not always intuitive.

As practitioners, we typically become involved in estate disputes weeks, months, or even years after the initial dispute breaks out. During this time, a great deal of potentially relevant evidence has likely been generated through the exchange of emails, texts, letters, and the like.

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Posted in Disinheriting Family Members, Elder Law Disputes, Elective share, General, intestacy, Legal Terminology, Preventing Disputes, Will Disputes \ Comments Off on Prior Correspondence: A Key Tool in Preparing Your Estate Dispute Case for Trial

What Happens When a Will’s Language is Inconsistent with the Titling of an Account Held with Survivorship?

A common question on most financial/investment account applications is whether an account-holder desires to own the account with one or more persons, with or without survivorship. Owning an account with “survivorship” means that upon the passing of one account-holder, the entirety of the funds will pass to the surviving account-holder (regardless of what the departed account-holder’s will or trust provides).

A common question that we encounter is what happens when a will’s language is inconsistent with the titling of an account held with survivorship?

The short answer is that the survivorship titling of the account will typically control over a will’s language.

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Recovering Attorney’s Fees in Power of Attorney Litigation: Virginia General Assembly Passes New Law Permitting the Recovery of Fees

The Virginia General Assembly passed a law in the 2019 legislative session that authorizes a successful plaintiff to receive an award of attorney’s fees in litigation under the Virginia Uniform Power of Attorney Act, where the court finds that the agent under the power of attorney breached his fiduciary duty.

The law constitutes an addition to Virginia Code Section 64.2-1614, and states as follows:

E. In a judicial proceeding under this chapter, if the court finds that the agent breached his fiduciary duty in violation of the provisions of this chapter, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any person who petitions the court for relief under subdivisions A 1 through 8, to be paid by the agent found in violation. This provision applies to a judicial proceeding concerning a power of attorney commenced on or after July 1, 2019.

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Jury Instructions on Undue Influence: Virginia Supreme Court Clarifies the Law

The Virginia Supreme Court recently handed down an important ruling that clarifies how juries should be instructed as to a presumption of undue influence in will contests. This opinion (Parson v. Miller, 822 S.E.2d 169) is essential reading for any estate litigator.

Under Virginia law, a presumption of undue influence arises in certain circumstances relating to the execution of a will, pursuant to which the burden of proof shifts to the proponent of the will to rebut the presumption. Prior to Parson, there was some question as to the manner in which a jury should be instructed about the presumption of undue influence. The question was: should the jury be instructed to find whether the presumption of undue influence has been rebutted, or should the trial court make such a determination as a matter of law (and in turn keep that decision from the jury)?

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Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party

The identity of parties matters a great deal in litigation.  The failure to sue the right person can have serious consequences.  Even if a litigant has a solid case, naming the wrong party can prematurely end a case without the suit ever being heard on the merits.  In some cases, courts permit amendments of lawsuits.  In light of that, some may assume that a mistake may be overlooked or fixed by a court.  Not so.  For these reasons, it is critical to enlist the help of an experienced litigator when faced with an estate dispute.

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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, Elective share, General, Legal Terminology, New Laws, Will Disputes \ Comments Off on Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party

Virginia Supreme Court Clarifies Remedies In Power Of Attorney Lawsuits

The Virginia Supreme Court recently issued a ruling that clarifies that under the Virginia Uniform Power of Attorney Act, trial courts may award monetary damages against an agent under a power of attorney, but may not issue an injunction directing that the agent must return money.

The issue arose due to language contained in the Virginia Uniform Power of Attorney Act, Section 64.2-1615(1), which provides that agents under powers of attorneys are “liable to the principal or the principal’s successors in interest for the amount required to [r]estore the value of the principal’s property to what it would have been had the violation not occurred.” At issue in the case (Mangrum v. Chavis, 18 Va. S. Ct. UNP 160782 (2018)) was whether this language provides that the agent under a power of attorney who is being sued for alleged financial improprieties may be forced by court order to restore money to the estate of the deceased principal under the power of attorney, or whether it provides merely that a money judgment may be entered against the agent.

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A Bewildering Bequest: The Supreme Court of Virginia Weighs in on the Meaning of a Will’s Residuary Clause

Most people are familiar with the basic contents of a will.  Wills typically name an executor, order the payment of debts and expenses, and provide for the distribution of the testator’s (will-maker) property.  Many wills provide for specific property to pass to specific people.  These are known as specific bequests or devises.  In addition to such bequests or devises, most wills contain a residuary clause – sort of a catch-all disposition for all of the rest and remainder of the estate.  They typically read something like this: “I leave all of the rest, residue, and remainder of my property, of whatever sort, to [beneficiary’s name]”.  On occasion, however, wills contain ambiguous or otherwise unclear provisions that require a court’s deciphering.

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Virginia Supreme Court Issues New Opinion on the Standard to Admit a Will to Probate

Last month, the Virginia Supreme Court handed down a ruling in an estate dispute that clarified the standard for admitting a will to probate, and further discussed the standard for admitting testimony concerning the decedent’s will when the genuineness of the will is called into question. The case – Canody v. Hamblin, 2018 WL 3471372 – provides a helpful overview of Virginia law on those two issues, and the following is a summary of the case facts and the holdings.

Facts

The decedent’s daughter petitioned the circuit court to have a document admitted to probate as her father’s will. The will consisted of three computer-generated pages of the same font and font size, with staple holes lining up on all pages. However, the will did not have any page numbers. The decedent’s son opposed the probating of the will because he was omitted from it.

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Legislative Update: Virginia’s General Assembly Acts to Reduce Inconsistencies between Revocable Living Trusts and Wills

As more people elect to use revocable living trusts for estate planning purposes instead of traditional wills, the disposition of property will increasingly depend on the interpretation and determination of revocable living trust provisions.  Virginia’s General Assembly (“General Assembly”), Virginia’s state legislature, recently acted, with House Bill 746, to address some of the principles governing revocable living trusts.  House Bill 746, which has been signed into law, amends several statutory sections of the Virginia Code relating to trust and estate law (collectively, the “Amendments”).  The Amendments serve to reduce some inconsistencies in the substance and interpretation of revocable living trusts and wills.  This post summarizes the Amendments in general terms.

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How to Disinherit a Child: 5 Tips to do so Successfully

This blog post discusses the steps that parents can take to disinherit a child and, in doing so, maximize their chances that their disinherited child won’t successfully challenge the parent’s will or trust.

When to Disinherit

Clearly, no parent should necessarily want to disinherit a child. But, there are a range of situations that could make such a decision not only warranted, but also necessary. For example, some children completely ignore their parents, or act so disrespectfully towards them, that it would be entirely appropriate to disinherit a child. I’ve seen scenarios whereby children have been disinherited for having tried to commit their parent to a mental institution, for committing adultery and abandoning their spouse and children, for shooting a relative, and for a whole host of other factors. In short, no parent should lightly undertake to disinherit their child, but there are some times when most people in society would find it to be appropriate.

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