When Does a Trust Become Irrevocable? At the Settlor’s Death, or Upon the Settlor’s Loss of Capacity? Hunter v. Hunter’s Discussion of the Concept

This post is part 7 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 issue of when a trust becomes irrevocable. Is it upon the death of the settlor (the person who created the trust)? Or at the time when the settlor loses the capacity to revoke the trust? You can find parts 1-6 of the series at the following links: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6.

For better or for worse, the Virginia Supreme Court did not decide that question in Hunter. Instead, it discussed the alternative viewpoints but declined to rule on the specific issue. The following is a summary of the Court’s discussion.

CONTINUE READING . . .

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Must a Will/Codicil be Signed?: Virginia Court Finds an Unsigned Codicil to be Valid

By recent letter opinion in the matter of In re George William Estate of Asmuth, the Fairfax Circuit Court held that an unsigned codicil was indeed valid under Virginia Code Section 64.2-404. The letter opinion, while not binding authority across all of Virginia, provides an instructive analysis and look at the legal framework for resolving a relatively common estate dispute scenario: whether a codicil/will which is unsigned is of any legal validity. My colleague Will Sleeth previously wrote an instructive blog post on this topic.

The facts of the case were that a testator (will-maker) (“George”) died in 2021. George signed a Will in 2018, which was admitted to probate in 2021 after his passing. There was, however, another document signed after the 2018 Will which purported to be a Codicil. The Codicil was not signed but George typed his name on the document. The Codicil also includes witness and notary certification pages, which were signed and completed.

CONTINUE READING . . .

Posted in Commonwealth of Virginia, Court Opinions, Disinheriting Family Members, Elder Law Disputes, Family disputes, General, Legal Terminology, New Laws, Will Disputes \ Comments Off on Must a Will/Codicil be Signed?: Virginia Court Finds an Unsigned Codicil to be Valid

More Lawsuits Coming?: Virginia’s General Assembly Increases the Jurisdictional Limits in Virginia’s General District Courts for Certain Personal Injury Claims

Virginia has two levels of trial courts: the circuit courts and the general district courts. Circuit courts are considered “courts of record”, while general district courts are considered “courts not of record.” Both levels of trial court have their own unique jurisdiction to hear certain types of cases.

The Recent Legislation

In a significant development, the Virginia General Assembly recently passed legislation to increase the jurisdictional limit of Virginia’s general district courts from $25,000.00 to $50,000.00 for personal injury and wrongful death claims.

This is a substantial change from prior law in Virginia, which had previously capped the damages maximum at $25,000.00, exclusive of interest, attorney’s fees, and court costs. Notably, this damage cap did not apply to unlawful detainer lawsuits (eviction lawsuits seeking judgments for delinquent rent).

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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

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

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 . . .

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

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.

CONTINUE READING . . .

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

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

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 . . .

Posted in Commonwealth of Virginia, Court Opinions, Disinheriting Family Members, Elder Law Disputes, Family disputes, General, Legal Terminology, Life Estate, New Laws, Will Disputes \ Comments Off on A Life Estate or Something Else?: The Virginia Supreme Court Adds Some Clarity on the Creation and Scope of Life Estates in Virginia

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

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

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 . . .

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