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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Posted in Fiduciary Duties, No Contest Clause, Trust Decanting, Trust Protectors \ Comments Off on 4 Estate Litigation Predictions For 2018

The Role of the Commissioner of Accounts in Virginia Estate and Trust Administration

People typically picture the probate process going something like this: a person dies, you find their will, you take the will to the courthouse, the executor pays the debts, and then the executor distributes the assets.   Of course, the process is much more complicated and time-consuming than that.  Moreover, there are also multiple people involved in the process of administering an estate or testamentary trust.  One of these critical people is the Commissioner of Accounts.

If you are serving, or have served, as the executor or administrator of an estate in Virginia, you will no doubt have been in contact with the office of the Commissioner of Accounts (the “Commissioner”).  You will also come to know the Commissioner’s office if you are trustee of a testamentary trust domiciled in Virginia (and provided the trust does not waive accounting requirements) or conservator over a Virginia resident’s estate.

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I Do…I Do…Wait, Did We?: The Virginia Supreme Court Weighs in on the Timing of Marriage Licenses and Ceremonies

Imagine you’ve thought you were married for a decade and all of a sudden your spouse denies that you were ever married at all.  The Virginia Supreme Court (the “Court”) recently decided just such a case in Levick v. MacDougall.  The central issue in that case was whether a married couple must first obtain a marriage license before “solemnizing” their marriage.

The facts were straightforward: Richard and Deborah were “married” on December 21, 2002 at a celebration at Richard’s house with friends and family.  The officiant, on the day of the “wedding”, discovered that Richard and Deborah had not obtained a marriage license.  The officiant suggested that they go forward with the ceremony anyway and that the couple obtain a marriage license as soon as possible.  Around two weeks later, on January 6, 2003, the parties went to the local courthouse to obtain a marriage license.  They then mailed it to the officiant.  The officiant received the marriage license, filled it out on January 21, 2003, and wrote on the certificate that Richard and Deborah were married on January 21, 2003. 

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Alan Thicke Estate Dispute Highlights Pre-litigation Threats

Actor Alan Thicke – best known for his role on the TV show Growing Pains – passed away at the end of 2016, leaving behind a dispute between two of his sons and his third wife.

Recently, Thicke’s two sons (Robin Thicke and Brennan Thicke) filed a petition in California state court, seeking a ruling that a premarital agreement between their father and his third wife (Tanya Callau Thicke) be declared valid. Tanya Thicke moved to dismiss the petition, claiming that she did not intend to contest the validity of the premarital agreement. The sons argued that Tanya Thicke had previously indicated that she was planning to challenge the premarital agreement (because if she was successful in her challenge, she would receive a larger part of Alan Thicke’s estate).

In support of their argument, the sons pointed to a letter that Tanya Thicke’s attorney had sent earlier in the year, alluding to a challenge to the premarital agreement. However, Tanya Thicke argued that the letter was merely a settlement communication, which, under the rules of evidence, was privileged (and therefore could not be introduced into evidence in a judicial proceeding).

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Virginia Supreme Court Issues New Estate Dispute Opinion

Back in June of this year, the Virginia Supreme Court handed down a ruling in an estate dispute case that, while it didn’t particularly break new legal ground, provides a helpful overview of the current state of Virginia law regarding Virginia’s Slayer Statute as well as claims contesting a deed of gift on the basis of undue influence.

In Gelber v. Glock, 293 Va. 497 (2017), the Virginia Supreme Court reviewed rulings of the trial court in a case involving allegations by several of the decedent’s children that, among other things, their sister wrongfully induced their mother to execute a deed of gift and bill of sale through undue influence and fraud. At trial, the trial court had excluded certain statements by the decedent as hearsay, and further struck the plaintiffs’ evidence as to their claim of undue influence. On appeal, the Virginia Supreme Court reversed the trial court on both issues.

Hearsay / Dead Man’s Statute

At trial, the plaintiffs sought to introduce into evidence statements made by the decedent whereby she disavowed the deed of gift that she had previously executed. The trial court held that those statements were inadmissible, apparently reasoning that the Dead Man’s statute is not available as a hearsay exception for statements by the decedent that were not made contemporaneously with the execution of the deed of gift. In general, the Dead Man’s statute prohibits someone from receiving a judgment based solely on his own testimony that a deceased person said something. Instead, there must be corroborating evidence to support it. There is a lengthy series of cases about how strong the corroborating evidence must be, and from whom it may and may not come.

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