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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Raise It or Waive It?: The Virginia Supreme Court Weighs in on When Parties in Estate Litigation Must Raise (or Waive) Testamentary Capacity/Undue Influence Claims

Imagine your aging, widowed mother (“Mother”) has dementia and moves into assisted living.  You live about four hours away from Mother.  Your sibling (“Sibling”) lives about five (5) minutes away from Mother.  Sibling becomes increasingly involved in Mother’s affairs.  One day Sibling provides you with a copy of Mother’s recently changed will.  The new will leaves everything to Sibling.  Given Mother’s dementia, you are highly concerned because you don’t think Mother had the capacity to make the new will.  You ask Sibling about the new will.  Sibling says “It’s what Mother wants.”

Later, Sibling files a lawsuit seeking to be appointed Mother’s guardian (a person in control of Mother’s medical and residential decisions) and conservator (a person in control of Mother’s finances).  Sibling has never held a job and seems to be motivated by Mother’s money.  You don’t think Sibling is a responsible caretaker.  You file papers with the court asking the Judge to appoint you guardian and conservator instead.

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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, General, Guardianship/Conservatorship Proceedings, Legal Terminology, New Laws, Power of Attorney Disputes, Undue Influence, Will Disputes \ Comments Off on Raise It or Waive It?: The Virginia Supreme Court Weighs in on When Parties in Estate Litigation Must Raise (or Waive) Testamentary Capacity/Undue Influence Claims

Who Would Inherit Luke Skywalker’s Estate?

Spoiler Alert:  This post contains spoilers about the recent Star Wars movie, The Last Jedi.

At the climax of The Last Jedi, Luke Skywalker appears via Force Projection on the planet Crait to confront his nephew Kylo Ren and save the last of the Rebels.  Exhausted from appearing via Force Projection to ensure the escape of the Rebels, Luke Skywalker peacefully passes on and became one with the Force.  His Jedi robes gently collapse into a pile as we gaze to the broad and optimistic horizon ahead.

As we ponder profound issues such as Rey’s parentage, Leia’s apparent Force ability, the possibility of Benicio Del Toro’s return in the next movie (hopefully, yes), and the fate of the Republic, we must also consider the disposition of Luke’s estate.  While we do not know whether Luke had a will in place, nevertheless, it’s both fun and educational to analyze the answer, because if the same laws in effect in Virginia were in effect in the Star Wars universe, Luke’s death would likely have set off a wave of litigation among numerous characters in the Galaxy.

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Posted in Celebrity Estate Disputes, Disinheriting Family Members, Elective share, General, intestacy, Legal Terminology, Will Disputes \ Comments Off on Who Would Inherit Luke Skywalker’s Estate?

Doctors Notes for Will Signings: Should You Get One?

I recommend that before an ill or very elderly person signs a will (or trust), that the estate planning attorney obtain a note from a doctor as to the person’s mental capacity. Doing so will help create a record that will make it more challenging to contest the will (or trust) on the basis that the person lacked testamentary capacity (i.e., the requisite mental capacity in order to execute a will or trust).

I’ve litigated over 100 estate disputes, and more often than not, the doctors notes that I see are poorly drafted and do not help much. My goal in this blog post is to explain how to obtain a well-written doctor’s note that will help a will or trust withstand a challenge on the basis of lack of testamentary capacity.

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Undue Influence in Virginia: Does the Undue Influencer Have to Be a Beneficiary?

Without question, one of the most common estate disputes we see centers around allegations that one person unduly influenced another person to write (or re-write) a will or trust.  The typical situation involves an elderly person, no longer capable of living independently, who becomes increasingly reliant on another person for care and assistance.

Under Virginia law, undue influence occurs when a testator’s free will is destroyed due to the influencer’s close relationship with the testator.  This theory is one of the most common methods used to attack a will or trust.  There are different ways to prove undue influence.  Undue influence can be shown either by direct proof or by circumstantial proof.  Circumstantial proof, which is far more commonly used, may be shown by the satisfaction of certain factual elements (which are set forth below).

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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, Fiduciary Accounting Requirements, General, Legal Terminology, New Laws, Preventing Disputes, Trust Disputes \ Comments Off on Undue Influence in Virginia: Does the Undue Influencer Have to Be a Beneficiary?

4 Estate Litigation Predictions For 2018

The new year is a good time to look ahead at what trends we may expect to see in the area of estate litigation in 2018. I have 4 predictions.

#1: The Volume Of Estate Litigation Will Continue To Increase

We are very likely to see an increase in the volume of estate litigation in 2018. There are many reasons for this. First, our society is increasingly aging, and with more elderly people passing away each year, the scope of potential estates and trusts that could give rise to litigation increases. Second, more money is being passed down via inheritance now than at any other time in human history, meaning that there’s much more to fight over than at any time in the past. Third, our society is becoming increasingly litigious in general, so it’s not surprising that this carries over to the estate litigation context. And fourth, new laws relating to trusts and estates are proliferating seemingly each year, opening up new areas of potential disputes. For example, within the past decade or so, we’ve seen a dramatic rise in the utilization of trust protectors (see my blog post discussing litigation involving trust protectors here), a proliferation of trust decanting statutes (see my blog post discussing disputes relating to trust decanting here), as well as the expansion of the Uniform Trust Code to nearly two-thirds of the states.

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