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No Contest Clauses and Challenges to Beneficiary Designations, Account Titlings, Gifts, or Powers of Attorney: Hunter v. Hunter’s Discussion of the Concept

November 10, 2021 by

This post is part 6 in our 7-part series on the Virginia Supreme Court’s ruling in Hunter v. Hunter (Record No. 190260). Today we focus on the opinion’s discussion of the concept of a no contest clause “seeking to seal the courthouse doors to a litigant.” You can find parts 1-5 of the series at the following links: Part 1, Part 2, Part 3, Part 4, and Part 5.

In the Hunter opinion, the Virginia Supreme Court stated: “To begin, we have never addressed (much less approved) a no-contest provision seeking to seal the courthouse doors to a litigant seeking an interpretation (rather than an invalidation) of a trust or will provision.” The Court proceeded to cite an array of secondary sources that criticize such a practice. The Court stated in Hunter that it did not need to technically resolve that question to rule in the case. That said, the citations and tone appear to indicate that the Court would look highly skeptically on any effort by a litigant to try to use a no contest clause to wholly prohibit judicial interpretation of a will or trust provision.

CONTINUE READING . . .

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The Supreme Court of Virginia Hands Down a New Decision on the Applicability of a No Contest Clause in a Trust

September 22, 2021 by

By recent unpublished order in the matter of McMurtrie, v. McMurtrie, the Supreme Court of Virginia reversed a trial court’s ruling that a no contest clause (in terrorem clause) in a trust did not apply to a trust settlor (trust creator).

While unpublished, the order nevertheless provides an instructive analysis of the legal framework for an increasingly common estate dispute scenario: whether a no contest clause in a trust or will has been violated by the actions of a beneficiary. Additionally, this unpublished order also applied certain principles from the Supreme Court’s recent Hunter v. Hunter decision. Notably, Hunter v. Hunter is the case that my colleague Will Sleeth and I litigated successfully up to the Supreme Court of Virginia, and about which my colleague Will Sleeth has written several previous posts (post 5, post 4, post 3, post 2, post 1).

CONTINUE READING . . .

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Posted in Commonwealth of Virginia, Court Opinions, Disinheriting Family Members, Elder Abuse, Elder Law Disputes, Family disputes, Fiduciary Duties, General, Gifts, Legal Terminology, New Laws, No Contest Clause, Preventing Disputes, Trust Disputes \ Comments Off on The Supreme Court of Virginia Hands Down a New Decision on the Applicability of a No Contest Clause in a Trust

Trustee Accounting Requirements and Duties in Virginia: Hunter v. Hunter’s Discussion of the Concept

June 10, 2021 by

This post is part 5 in our 7-part series on the Virginia Supreme Court’s ruling in Hunter v. Hunter (Record No. 190260). Today we focus on the opinion’s discussion of the legal duties in Virginia of a trustee to “inform and report” and provide accountings to a trust beneficiary. You can find parts 1-4 of the series at the following links: Part 1, Part 2, Part 3, and Part 4.

Virginia law contains several sources of law that may apply with respect to a trustee’s duty to provide an accounting or to “inform and report” to a trust beneficiary.

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“Gift Over” and No Contest Clauses: Hunter v. Hunter’s Discussion of the Concept

December 15, 2020 by

This post is part 4 in our 7-part series on the Virginia Supreme Court’s ruling in Hunter v. Hunter (Record No. 190260). Today we focus on the opinion’s discussion of the “gift over” rule and how that rule relates to a no contest clause. You can find parts 1-3 of the series at the following links: Part 1, Part 2, and Part 3.

The “gift over” rule relates to what type of language a no contest clause must contain in order to be legally effective. English and early American courts required that in order for a no contest clause to be effective, it must be accompanied by language providing that if a litigant is disinherited under a no contest clause, that litigant’s share must be distributed to some other person or persons. Hence the name “gift over.”

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A Life Estate or Something Else?: The Virginia Supreme Court Adds Some Clarity on the Creation and Scope of Life Estates in Virginia

August 25, 2020 by

By recent opinion in the matter of Sandra Flora Snead Larsen v. Pamela Larsen Stack, et al., the Virginia Supreme Court upheld a Trial Court’s decision relating to ambiguous provisions in a will relating to purported life estates. The opinion provides an instructive analysis and look at the legal principles relating to a somewhat common estate dispute scenario.

The facts of the case were that the Testator’s (will maker) will (“Will”) divided his estate between his wife (“Wife”), two children (“Children”), and grandchildren. At issue was a certain provision of his Will that left certain real property (the “Cell Tower Property”) to his Children, “subject to [his] wife . . . having the right to reside in [the] home . . . for so long as she is physically and mentally able to do so . . . .” Such provision also provided that his Wife would receive rental payments pursuant to a cellular tower agreement “for as long as she resides in our home . . . .”

CONTINUE READING . . .

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No Contest Clauses Protecting Fiduciary Misconduct: Hunter v. Hunter’s Discussion of the Concept

July 28, 2020 by

This post is part 3 in our 7-part series on the Virginia Supreme Court’s ruling in Hunter v. Hunter (Record No. 190260). Today we focus on an extremely important portion of the ruling that discussed concerns about how expansively-worded no contest clauses could protect unscrupulous trustees. To my knowledge, this is the first time that this concept has ever been addressed in a written opinion interpreting Virginia law, so this is a very significant development.

For years, we’ve written on this blog about the dangers that increasingly-broadly-worded no contest clauses pose. The concern lies, in short, in the fact that unscrupulous fiduciaries could seek to hide behind a no contest clause in order to deter a will or trust beneficiary from holding the fiduciary accountable for misconduct. Conventionally, no contest clauses applied to challenges to the underlying validity of a will or trust itself. In the last decade or so, we’ve seen an explosion in no contest clauses that purport to be triggered by challenges to conduct by a fiduciary, or contests to instruments (such as beneficiary designations or right of survivorship designations) that are completely separate and apart from the instrument that contains the no contest clause.

CONTINUE READING . . .

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Virginia Supreme Court Upholds Judgment Against Power of Attorney Agent for Breach of Fiduciary Duty

May 26, 2020 by

By recent unpublished order in the matter of Harold v. Devening, Administrator of the Estate of Donald Wayne Ayers, the Virginia Supreme Court upheld a monetary judgment entered against a power of attorney agent for breach of fiduciary duty. The order provides an instructive analysis and look at the legal framework for a relatively common estate dispute scenario.

The facts of the case were that the principal under the power of attorney (the person signing the power of attorney) (“Principal”) moved in with a family friend, Harold (“Agent”), about nine months before his passing. Principal passed away in 2013 with a bank account worth about $2.4 million. [Note: As we have discussed in a prior post, it is important to keep in mind that any nonprobate/nontestamentary assets may pass outside the Will and by other means]. This account had a payable-on-death designation. The designation provided that the account was to be split three ways – to the Principal’s two sons and family friend Agent.

CONTINUE READING . . .

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Who Would Inherit the Emperor’s Estate?

April 27, 2020 by

As loyal readers of this blog know, our team has previously posted analyses of the fictional estates of the Star Wars universe (Han Solo, Darth Vader, Luke Skywalker). We now turn our attention to who would inherit Emperor Palpatine’s estate in light of the most recent Star Wars film The Rise of Skywalker.

Spoiler Alert: (this post contains spoilers about the recent Star Wars film The Rise of Skywalker).

Everyone thought that Emperor Palpatine (“Emperor”) died at the end of The Return of the Jedi when Darth Vader heroically sacrificed himself, on behalf of his imperiled son Luke, and threw the lightning-obsessed Emperor down that long, seemingly endless air shaft.

However, much to everyone’s surprise, the Emperor apparently survived that epic toss, had been living in exile in the gloomy location of Exegol, and still was running the Galaxy. Nevertheless, at the dramatic end of the recent film The Rise of Skywalker, the Emperor (apparently) died (again). He ultimately succumbed after his epic battle with both Rey and Ben Solo/Kylo Ren.

CONTINUE READING . . .

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No Contest Clauses Are Strictly Construed: Hunter v. Hunter’s Discussion of the Concept

April 13, 2020 by

In Hunter v. Hunter (Record No. 190260), the Virginia Supreme Court devoted nearly a page of its opinion to discussing how no contest clauses in Virginia are strictly construed. Its discussion contains some new language that may prove to be helpful to litigants on this issue. In this second part of a seven-part series of blog posts on the Hunter case, we examine the implications of the Court’s discussion of this issue (note: part one of the series can be found here.

CONTINUE READING . . .

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Virginia Supreme Court Issues Significant New Decision on No Contest Clauses (Hunter v. Hunter)

April 1, 2020 by

The Virginia Supreme Court recently handed down one of the most significant trust and estate litigation opinions in years. In the unanimous ruling in Hunter v. Hunter (Record No. 190260), the Court (for the first time) expressly approved of an alternative-pleading model whereby a trust beneficiary may first seek a declaratory judgment as to whether a proposed claim would trigger a no contest clause, and obtain a ruling on that threshold question, before deciding whether to proceed with the prosecution of the claim.

Full disclosure: I litigated the Hunter case on behalf of the successful appellant, both at the trial court level and on appeal. I may be biased, but I believe that the ruling’s impact is significant. Not only does the ruling bring clarity on a method of navigating no contest clauses, but it also briefly touches on numerous other areas of trust law that could come before the Court in the future. In the appeal from the trial court, we raised seven assignments of error, several of which touched on open issues of trust law in Virginia. While the Court ruled in our favor on one of the assignments, it didn’t reach the other assignments, but interestingly it mentioned some of those issues in its opinion.

CONTINUE READING . . .

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