Category Archives: Court Opinions

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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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, General, Guardianship/Conservatorship Proceedings, Legal Terminology, New Laws, Power of Attorney Disputes, Undue Influence, Will Disputes \ Comments Off on 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

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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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, Fiduciary Accounting Requirements, General, Legal Terminology, New Laws, Preventing Disputes, Trust Disputes \ Comments Off on Undue Influence in Virginia: Does the Undue Influencer Have to Be a Beneficiary?

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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Posted in Court Opinions, Elder Law Disputes, Fiduciary Accounting Requirements, Fiduciary Duties, General, Guardianship/Conservatorship Proceedings, Legal Terminology, Trust Disputes, Will Disputes \ Comments Off on The Role of the Commissioner of Accounts in Virginia Estate and Trust Administration

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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Posted in Court Opinions, Divorce, General, Legal Terminology, New Laws \ Comments Off on I Do…I Do…Wait, Did We?: The Virginia Supreme Court Weighs in on the Timing of Marriage Licenses and Ceremonies

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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Posted in Court Opinions, Elder Abuse, Undue Influence \ Comments Off on Virginia Supreme Court Issues New Estate Dispute Opinion

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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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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Posted in Court Opinions, Elder Law Disputes, General, Legal Terminology, Long Term Care Facilities, New Laws, Power of Attorney Disputes \ Comments Off on Be Careful With That Power of Attorney!: Arbitration Clauses and Nursing Home Lawsuits

UPDATE: Can an Intended (and Disappointed) Beneficiary Still Sue a Will’s Drafter?: The General Assembly of Virginia Enacts a Statutory Fix to the Thorsen Decision

Back in the summer I wrote a post discussing the impacts of the Thorsen decision by the Supreme Court of Virginia.  In Thorsen, a testator wanted to leave her estate to a charity if her daughter did not survive her.  The lawyer erred in drafting the will.  When the testator died several years later (with her daughter having predeceased her), the testator’s property went to other people, contrary to her intentions.  The charity, the intended beneficiary, sued the lawyer, asserting breach of contract for legal services. Thorsen was notable in that it held that Virginia common law permits intended third …

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Posted in Court Opinions, General, Legal Terminology, New Laws, Will Disputes \ Comments Off on UPDATE: Can an Intended (and Disappointed) Beneficiary Still Sue a Will’s Drafter?: The General Assembly of Virginia Enacts a Statutory Fix to the Thorsen Decision

Left At The Altar?: Who Owns The Engagement Ring When Love Goes Wrong?

You’ve found the right partner; you’ve found the right ring; and your fiancee accepted.  Now imagine your fiancee unexpectedly breaks off the engagement.  You are devastated.  Your friends tell you there are plenty of fish in the sea.  You’ve returned her favorite CDs and she’s returned your college sweatshirt. But who keeps the engagement ring? The Virginia Supreme Court recently decided this very question in the case of McGrath v. Dockendorf, No. 160262, 2016 WL 7243097 (Va. 2016).  In McGrath, Ethan proposed to his fiancee Julia with an impressive two-carat, $26,000.00 engagement ring. Julia accepted and took the ring.  About …

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