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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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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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.”
Spoiler Alert: This post contains spoilers about the recent Star Wars movie, 
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).
