Category Archives: Court Opinions

A Life Estate or Something Else?: The Virginia Supreme Court Adds Some Clarity on the Creation and Scope of Life Estates in Virginia

By recent opinion in the matter of Sandra Flora Snead Larsen v. Pamela Larsen Stack, et al., the Virginia Supreme Court upheld a Trial Court’s decision relating to ambiguous provisions in a will relating to purported life estates. The opinion provides an instructive analysis and look at the legal principles relating to a somewhat common estate dispute scenario. The facts of the case were that the Testator’s (will maker) will (“Will”) divided his estate between his wife (“Wife”), two children (“Children”), and grandchildren. At issue was a certain provision of his Will that left certain real property (the “Cell Tower …

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Posted in Commonwealth of Virginia, Court Opinions, Disinheriting Family Members, Elder Law Disputes, Family disputes, General, Legal Terminology, Life Estate, New Laws, Will Disputes \ Comments Off on A Life Estate or Something Else?: The Virginia Supreme Court Adds Some Clarity on the Creation and Scope of Life Estates in Virginia

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.

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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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Posted in Court Opinions, Guardianship/Conservatorship Proceedings, New Laws, No Contest Clause \ Comments Off on Estate Litigation Predictions for 2020

Public Policy Limits on Wills – May a Will Condition a Bequest on a Beneficiary’s Obtaining a Divorce?

In the recent Fairfax Circuit Court decision of In re Connolly (Case No. CL-2018-0002347), the trial court had to decide the issue of whether a testator (will maker) may condition a bequest on a beneficiary’s obtaining a divorce from his current spouse. While a testator may write whatever she desires in her will or trust, courts, in some circumstances, have the authority to invalidate provisions as void against public policy. A court will generally not, on its own initiative, invalidate such provisions. Rather, an interested person may have standing to bring a suit to seek a declaratory judgment asking the …

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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, Elective share, General, intestacy, Legal Terminology, Preventing Disputes, Will Disputes \ Comments Off on Public Policy Limits on Wills – May a Will Condition a Bequest on a Beneficiary’s Obtaining a Divorce?

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.

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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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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.

Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, Elective share, General, Legal Terminology, New Laws, Will Disputes \ Comments Off on Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party

Virginia Supreme Court Clarifies Remedies In Power Of Attorney Lawsuits

The Virginia Supreme Court recently issued a ruling that clarifies that under the Virginia Uniform Power of Attorney Act, trial courts may award monetary damages against an agent under a power of attorney, but may not issue an injunction directing that the agent must return money. The issue arose due to language contained in the Virginia Uniform Power of Attorney Act, Section 64.2-1615(1), which provides that agents under powers of attorneys are “liable to the principal or the principal’s successors in interest for the amount required to [r]estore the value of the principal’s property to what it would have been …

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