Author Archives: Will Sleeth
Virginia Does Not Recognize the “Good Faith Exception” for No Contest Clauses
In the case of Butler v. Stegmaier, 77 Va. Ct. App. 115 (2023), the Virginia Court of Appeals declined to recognize a “good faith and probable cause” exception to “no contest clauses,” also called “forfeiture clauses” and “in terrorem clauses.” This was a case that I litigated, and while I will not delve into the specific facts here, the ruling is significant because it was previously an open issue of law as to whether Virginia recognized such an exception. The key case on the issue was the Virginia Supreme Court’s holding in Womble v. Gunter, 198 Va. 522 (1956). In that case, the …
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The Burden of Proof When Using the Alternative-Pleading Model in Hunter v. Hunter
The Virginia Court of Appeals issued an important ruling the other year that spells out the burden of proof that a plaintiff has when seeking to utilize the alternative-pleading model of Hunter v. Hunter, 298 Va. 414 (2020). Full disclosure: I litigated Hunter v. Hunter (“Hunter I”) before the Virginia Supreme Court in 2020, and I also litigated this case before the Court of Appeals in 2023. The case styling is Hunter v. Hunter, 77 Va. App. 468 (2023). I’ll refer to it here as “Hunter II.” In Hunter II, the Court of Appeals examined a case where the plaintiff used the alternative-pleading model to …
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Where to Search for a Missing Will
I am often contacted by potential clients who insist that their relatives executed a will, but they are unable to locate it. Wills turn up in the strangest of places. The recent case of Aretha Franklin’s will is a perfect example of this. It was found underneath a couch cushion. This raises the question: where is the best place to search for a missing will? My answer is: just about every place that you can think of where a scrap of paper could be located. This issue is especially relevant in states like Virginia that recognize the validity of holographic wills …
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Virginia’s Harmless Error Rule May Permit a Will that Doesn’t Meet the Conventional Formalities to be Probated
Virginia has a version of the “harmless error rule” that may permit a will to be probated even if it does not strictly comply with the conventional formalities required for a writing to constitute a valid will. Traditionally, Virginia, like most states, required all wills to strictly comply with the legal requirement rules set forth in the code for when a writing can constitute a valid will. Any deviation, even if minor, usually meant that clerks and courts would not admit the will to probate as a valid will. That often led to some harsh results. In 2007, the Virginia …
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2022 Year in Review for Trust and Estate Disputes
In today’s blog post, I discuss a few notable developments from this past year in the field of trust and estate disputes. New Standard For Undue Influence In Will Contest Cases First, probably the most notable development from this past year is that Virginia’s General Assembly adopted a law that provides for a new standard for undue influence in will contest cases. Senate Bill 554 added a new provision to the Virginia Code in Section 64.2-454.1. I wrote a lengthy blog post this past summer on the bill (which blog post can be found here), so I won’t repeat myself …
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Legal Standing to Contest Inter Vivos Transactions in Virginia
In Virginia, a person has legal standing to contest an inter vivos transaction (a transaction made during the life of a person who is now deceased) when the person is the executor or administrator of the deceased person’s estate, or when certain legal exceptions apply. In this blog post, we analyze those exceptions and the state of Virginia law on this issue. Background to the Issue After a relative or friend passes away, a person may want to contest certain transactions that the deceased person made during their life (referred to as “inter vivos” transactions). Examples of inter vivos transactions …
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Virginia Has A New Standard For Undue Influence In Will Contest Cases
Beginning July 1, 2022, Virginia has a new standard for undue influence in Will contest cases. For most Will contest cases in Virginia, the standard for undue influence will now involve a presumption that undue influence was exerted over the decedent (the deceased person). This is a profound change from the current (pre-July, 2022) state of the law (which merely created a temporary presumption that was extremely easy to overcome), and it will make it much easier to contest the validity of a Will in Virginia. Text of the New Law In the 2022 session, the General Assembly adopted Senate …
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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 …
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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 …
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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.
