Author Archives: Will Sleeth
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 …
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No Contest Clauses Are Strictly Construed: Hunter v. Hunter’s Discussion of the Concept
In Hunter v. Hunter (Record No. 190260), the Virginia Supreme Court devoted nearly a page of its opinion to discussing how no contest clauses in Virginia are strictly construed. Its discussion contains some new language that may prove to be helpful to litigants on this issue. In this second part of a seven-part series of blog posts on the Hunter case, we examine the implications of the Court’s discussion of this issue (note: part one of the series can be found here.
Virginia Supreme Court Issues Significant New Decision on No Contest Clauses (Hunter v. Hunter)
The Virginia Supreme Court recently handed down one of the most significant trust and estate litigation opinions in years. In the unanimous ruling in Hunter v. Hunter (Record No. 190260), the Court (for the first time) expressly approved of an alternative-pleading model whereby a trust beneficiary may first seek a declaratory judgment as to whether a proposed claim would trigger a no contest clause, and obtain a ruling on that threshold question, before deciding whether to proceed with the prosecution of the claim. Full disclosure: I litigated the Hunter case on behalf of the successful appellant, both at the trial …
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Estate Litigation Predictions for 2020
As we make our way into a new year, it’s a good time to ask what trends we’re likely to see in 2020 in the world of estate litigation. Three main trends stand out in my mind: litigation over increasingly broad no contest clauses, an increase in contested guardianship and conservatorship litigation, and the advent of litigation over electronic wills. Litigation Over Increasingly Broad No Contest Clauses I predict that in 2020, we’ll see increased litigation over the scope and enforceability of no contest clauses, also referred to as in terrorem clauses. In short, no contest clauses are provisions contained …
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Virginia Supreme Court Issues New Ruling Regarding Commissioner of Accounts
Last month, the Virginia Supreme Court handed down a new ruling that confirms that circuit courts lack the authority to delegate final authority to approve accountings to the Commissioner of Accounts. While this ruling (in Moni Henderson v. Stephanie P. Cook, Trustee and Conservator for Thomas E. Noojin, Record No. 180772) doesn’t necessarily break new legal ground, it does provide a helpful overview of the law relating to the process by which the Commissioner of Accounts reviews accountings subject to the circuit court’s final review of the accountings.
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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