Author Archives: Brett Herbert
Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party
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.
A Bewildering Bequest: The Supreme Court of Virginia Weighs in on the Meaning of a Will’s Residuary Clause
Most people are familiar with the basic contents of a will. Wills typically name an executor, order the payment of debts and expenses, and provide for the distribution of the testator’s (will-maker) property. Many wills provide for specific property to pass to specific people. These are known as specific bequests or devises. In addition to such bequests or devises, most wills contain a residuary clause – sort of a catch-all disposition for all of the rest and remainder of the estate. They typically read something like this: “I leave all of the rest, residue, and remainder of my property, of …
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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 …
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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, …
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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 …
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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 …
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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 …
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Serial Suers and Vexatious Litigants: Can Courts Prevent Someone From Filing a Lawsuit?
The vexatious litigant is a problem that civil litigation attorneys very likely encounter at least once during their careers. It is a well-accepted precept that courts exist, in part, for citizens to seek redress for their claimed civil wrongs. But can a person abuse the privilege? The Supreme Court of Virginia held that a person can indeed abuse that privilege, in its June 8, 2017 opinion in Dora L. Adkins v. CP/IPERS Arlington Hotel LLC, Record No. 160685. While not a typical case involving an appeal on the merits, the Adkins decision was written upon a petition for a rehearing …
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Be Careful With That Power of Attorney!: Arbitration Clauses and Nursing Home Lawsuits
On May 15, 2017, the Supreme Court of the United States handed down its opinion in Kindred Nursing Centers, L.P. v. Clark. This case addressed the issue of whether an agent acting pursuant to a power of attorney could bind an estate to an arbitration agreement. The facts of the case were simple. Beverly and Janis, family members of Joe and Olive respectively, each held their family member’s respective power of attorney. Joe and Olive moved into a nursing home operated by Kindred Nursing Centers, L.P. (“Kindred”). Beverly and Janis used their family members’ powers of attorney to sign an …
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