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

By recent unpublished order in the matter of Harold v. Devening, Administrator of the Estate of Donald Wayne Ayers, the Virginia Supreme Court upheld a monetary judgment entered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.

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Posted in Beneficiary Designation, Commonwealth of Virginia, Disinheriting Family Members, Elder Law Disputes, Family disputes, Fiduciary Duties, General, Legal Terminology, New Laws, Power of Attorney Disputes, Will Disputes \ Comments Off on Virginia Supreme Court Upholds Judgment Against Power of Attorney Agent for Breach of Fiduciary Duty

Who Would Inherit the Emperor’s Estate?

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.

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Posted in Disinheriting Family Members, Elder Law Disputes, Elective share, General, intestacy, Legal Terminology, Will Disputes \ Comments Off on Who Would Inherit the Emperor’s Estate?

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

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.

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

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.

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Posted in Court Opinions, Fiduciary Accounting Requirements, No Contest Clause, Trust Disputes \ Comments Off on Virginia Supreme Court Issues Significant New Decision on No Contest Clauses (Hunter v. Hunter)

Estate Litigation Predictions for 2020

As we make our way into a new year, it’s a good time to ask what trends we’re likely to see in 2020 in the world of estate litigation. Three main trends stand out in my mind: litigation over increasingly broad no contest clauses, an increase in contested guardianship and conservatorship litigation, and the advent of litigation over electronic wills.

Litigation Over Increasingly Broad No Contest Clauses

I predict that in 2020, we’ll see increased litigation over the scope and enforceability of no contest clauses, also referred to as in terrorem clauses. In short, no contest clauses are provisions contained in wills or trusts that provide that if a litigant commits conduct that falls within the scope of the clause, he is prohibited from inheriting via the will or trust. The conventional no contest clause sought to penalize contests to the validity of wills or trusts. If the contest was successful, then the will or trust was declared invalid, thereby eliminating the enforceability of the no contest clause contained within the will or trust. But if the contest failed, the unsuccessful litigant would forfeit any inheritance he may have otherwise stood to receive under the will or trust (except if certain conditions applied, such as the doctrine of good faith and probable cause). In short, no contest clauses traditionally applied just to contests to the validity of wills and trusts.

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Posted in Court Opinions, Guardianship/Conservatorship Proceedings, New Laws, No Contest Clause \ Comments Off on Estate Litigation Predictions for 2020

Public Policy Limits on Wills – May a Will Condition a Bequest on a Beneficiary’s Obtaining a Divorce?

In the recent Fairfax Circuit Court decision of In re Connolly (Case No. CL-2018-0002347), the trial court had to decide the issue of whether a testator (will maker) may condition a bequest on a beneficiary’s obtaining a divorce from his current spouse. While a testator may write whatever she desires in her will or trust, courts, in some circumstances, have the authority to invalidate provisions as void against public policy. A court will generally not, on its own initiative, invalidate such provisions. Rather, an interested person may have standing to bring a suit to seek a declaratory judgment asking the court to invalidate the provision based on public policy reasons.

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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, Elective share, General, intestacy, Legal Terminology, Preventing Disputes, Will Disputes \ Comments Off on Public Policy Limits on Wills – May a Will Condition a Bequest on a Beneficiary’s Obtaining a Divorce?

Virginia Supreme Court Issues New Ruling Regarding Commissioner of Accounts

Last month, the Virginia Supreme Court handed down a new ruling that confirms that circuit courts lack the authority to delegate final authority to approve accountings to the Commissioner of Accounts. While this ruling (in Moni Henderson v. Stephanie P. Cook, Trustee and Conservator for Thomas E. Noojin, Record No. 180772) doesn’t necessarily break new legal ground, it does provide a helpful overview of the law relating to the process by which the Commissioner of Accounts reviews accountings subject to the circuit court’s final review of the accountings.

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Posted in Court Opinions, Fiduciary Accounting Requirements, Trust Disputes \ Comments Off on Virginia Supreme Court Issues New Ruling Regarding Commissioner of Accounts

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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Posted in Disinheriting Family Members, Elder Law Disputes, Elective share, General, intestacy, Legal Terminology, Preventing Disputes, Will Disputes \ Comments Off on What Happens When a Will’s Language is Inconsistent with the Titling of an Account Held with Survivorship?

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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Posted in Fiduciary Duties, New Laws, Power of Attorney Disputes \ Comments Off on Recovering Attorney’s Fees in Power of Attorney Litigation: Virginia General Assembly Passes New Law Permitting the Recovery of Fees