Author Archives: Will Sleeth

Will Sleeth

About: Will Sleeth

Will Sleeth serves as the editor of the Estate Conflicts blog, and is the leader of the firm’s Estate and Trust Litigation practice area team, a nationwide team composed of over a dozen attorneys focusing on disputes involving wills, trusts, guardianships, conservatorships, powers of attorney, and elder law matters. Primarily based out of the firm’s Williamsburg and Richmond offices, Will represents clients all throughout Virginia and the nation.

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 …

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Jury Instructions on Undue Influence: Virginia Supreme Court Clarifies the Law

The Virginia Supreme Court recently handed down an important ruling that clarifies how juries should be instructed as to a presumption of undue influence in will contests. This opinion (Parson v. Miller, 822 S.E.2d 169) is essential reading for any estate litigator. Under Virginia law, a presumption of undue influence arises in certain circumstances relating to the execution of a will, pursuant to which the burden of proof shifts to the proponent of the will to rebut the presumption. Prior to Parson, there was some question as to the manner in which a jury should be instructed about the presumption …

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Virginia Supreme Court Issues New Opinion on the Standard to Admit a Will to Probate

Last month, the Virginia Supreme Court handed down a ruling in an estate dispute that clarified the standard for admitting a will to probate, and further discussed the standard for admitting testimony concerning the decedent’s will when the genuineness of the will is called into question. The case – Canody v. Hamblin, 2018 WL 3471372 – provides a helpful overview of Virginia law on those two issues, and the following is a summary of the case facts and the holdings. Facts The decedent’s daughter petitioned the circuit court to have a document admitted to probate as her father’s will. The will …

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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 …

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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 …

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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 …

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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 …

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Legal Malpractice Claims Against Estate Planning Attorneys in Virginia: Post-Thorsen Legislation

The legal landscape in Virginia regarding claims for legal malpractice against estate planning attorneys changed significantly this past year when the Virginia General Assembly adopted legislation to address the issues raised in the Virginia Supreme Court’s Thorsen decision. This blog post discusses some implications of, and observations about, the new legislation, which was adopted as Virginia Code Section 64.2-520.1. My colleague Brett Herbert did a great job summarizing the terms of the new statute itself, in his earlier blog post on this issue (which can be found here). Implication #1 First, Section 64.2-520.1(B) provides that only a personal representative can bring …

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Trust Decanting Disputes

As trust decanting becomes increasingly popular, we can expect to see more disputes and litigation regarding trust decanting. This blog post examines some of the main issues that will likely arise in those disputes. First, what is trust decanting? The Uniform Law Commission states: “’Decanting’ is the term used to describe the distribution of assets from one trust into a second trust, like wine is decanted from the bottle to another vessel. Decanting can be a useful strategy for changing the outdated terms of an otherwise irrevocable trust, but can also be abused to defeat the settlor’s intent.” Essentially, decanting …

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Trustee Removal Lawsuits: An Overview

How can a person remove a trustee of a trust? Depending on the language of the trust, there could be several ways. This blog post summarizes some of the options, and provides an overview of things to consider when a person wants to remove a trustee. First, the terms of the trust itself may provide procedures for the removal of a trustee. Oftentimes, comprehensively-drafted trust instruments will contain specific procedures whereby beneficiaries or a beneficiary may remove a trustee. Those procedures could require a specific reason for the trustee removal (such as misconduct on the part of the trustee) or …

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