Monthly Archives: January 2015

Why a Guardianship Proceeding Could be a Precursor to a Will Change

Did you know that in Virginia, a person who is the subject of a guardianship and/or conservatorship can still have the requisite testamentary capacity to enact or amend his will? As a result, there’s a huge potential for mischief by those seeking to be appointed a guardian and/or conservator. First, some background: several years ago, the Virginia Supreme Court reiterated – in the case Parish v. Parish, 281 Va. 191 (2011) – that a person can still have testamentary capacity to make a will (that is, the required mental ability), even if a court has appointed a guardian and/or a …

[ CONTINUE READING ]

Posted in Disinheriting Family Members, Guardianship/Conservatorship Proceedings, Undue Influence \ Comments Off on Why a Guardianship Proceeding Could be a Precursor to a Will Change

Using “Nonmarital Child” Instead of “Illegitimate Child”

Estate litigation cases often feature children born outside of wedlock. In those instances, estate litigators face a choice as to what terminology they should use to characterize such children. Selecting the appropriate phrase is not just important for purposes of pleadings and motions (to be read by a judge), but also for purposes of trying a case in front of a jury. Throughout American history, society has used three main terms to refer to such persons: “bastard children”, “illegitimate children”, and “nonmarital children”. The phrase “illegitimate child” is quickly (and thankfully) falling out of acceptance. There are many reasons why …

[ CONTINUE READING ]

Posted in Legal Terminology \ Comments Off on Using “Nonmarital Child” Instead of “Illegitimate Child”

Perfect Estate Plans (On Paper) Can Still Lead to Litigation

Having handled approximately 100 estate disputes, I’m frequently asked what people can do with their estate plans to try to prevent disputes from arising among their family members. Having a proper estate plan in place is unquestionably a key component to preventing a dispute among family members. But perhaps equally important is naming competent, honest people to the fiduciary positions in an estate plan. Here’s what I mean.  The most well-written estate plan can’t prevent the following scenarios: a trustee who mismanages a trust, a trustee who refuses to inform and report to the beneficiaries as required by law, or …

[ CONTINUE READING ]

Posted in Fiduciary Duties, Trust Disputes, Will Disputes \ Comments Off on Perfect Estate Plans (On Paper) Can Still Lead to Litigation

How To Snoop On An Agent’s Actions Under a Power of Attorney

Virginia law provides for a relatively quick and inexpensive method of obtaining information about actions taken by an agent under a power of attorney. This provision can be utilized by family members who have suspicions as to whether other family members or friends, who were appointed as agents under a power of attorney, acted properly. Virginia Code Section 64.2-1612 (which is similar to the law in other states that have also adopted the Uniform Power of Attorney Act, as Virginia has), provides in general that unless a power of attorney states otherwise, an agent under a power of attorney must, …

[ CONTINUE READING ]

Posted in Power of Attorney Disputes \ Comments Off on How To Snoop On An Agent’s Actions Under a Power of Attorney

New Law Enables Possible Recovery Of Attorney’s Fees On Grounds Of Undue Influence

Last year, the Virginia General Assembly adopted a new law that went into effect on July 1, 2014.  Virginia Code Section 8.01-221.2. provides as follows: “In any civil action to rescind a deed, contract, or other instrument, the court may award to the plaintiff reasonable attorney fees and costs associated with bringing such action where the court finds, by clear and convincing evidence, that the deed, contract, or other instrument was obtained by fraud or undue influence on the part of the defendant.” In other words, the court has the option (note the use of the word “may”, as opposed …

[ CONTINUE READING ]

Posted in New Laws, Undue Influence \ Comments Off on New Law Enables Possible Recovery Of Attorney’s Fees On Grounds Of Undue Influence

Welcome to the Estate Conflicts Blog!

Hello, and welcome to the newest blog from the law firm of LeClairRyan. My name is Will Sleeth and I serve as the editor of the blog. Joining me in writing for the blog will be several other attorneys from LeClairRyan who either focus a part of their practice on estate litigation, or focus on areas of the law that intersect with estate litigation (such as estate planning, family law, etc.). This blog is dedicated to all things relating to estate conflicts. It will focus on topics such as will disputes, trust disputes, elder law disputes, and guardianship disputes. We …

[ CONTINUE READING ]

Posted in General \ 1 Comment