Category Archives: Court Opinions

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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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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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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Posted in Court Opinions, Divorce, General, Gifts, Legal Terminology \ Comments Off on Left At The Altar?: Who Owns The Engagement Ring When Love Goes Wrong?

Risks to Estate Planning Attorneys in Light of the Thorsen Case

There are several things that all estate planning attorneys (and those who advise them) need to be aware of in light of the Virginia Supreme Court’s recent ruling in Thorsen v. Richmond Society For The Prevention Of Cruelty to Animals, No. 150528, 2016 WL 3131004 (Va. 2016). My colleague Brett Herbert provided a helpful summary of the Court’s ruling in Thorsen in a prior blog post, which can be accessed here. This post shares some tips on how estate planning attorneys can attempt to minimize their legal exposure in light of the Thorsen ruling. Estate planning attorneys would be wise to insert into …

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Unfulfilled Expectations: May an Intended (and Disappointed) Beneficiary Sue a Will’s Drafter?

Imagine the following scenario.  Your elderly mother, your only surviving parent, wants to have a discussion with you about her estate plan.  She shows you her will and explains her intentions.  You look at the will and it seems to make sense.  She tells you she is leaving her estate to you upon her death.  She even provides you with a copy of her will and tells you where the original is.  You feel peace of mind knowing that your mother’s estate is (or should) be in order. A short time later, your mother dies.  You have no idea what …

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Virginia Supreme Court Issues New Ruling Regarding Guardianship Orders

A recent Virginia Supreme Court case highlights the importance of using precise language in an order appointing a guardian, as well as ensuring that when a guardian files suit on behalf of a ward, the guardian sues in the correct capacity. The Virginia Supreme Court recently handed down its ruling in Lopez-Rosario v. Habib, 785 S.E.2d 214 (2016), which dealt with an appeal from the Fairfax County Circuit Court. The Court confronted the issue of whether the trial court properly dismissed a medical malpractice claim on the ground that the plaintiff filed suit in her own name, despite the fact that …

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Virginia Supreme Court Issues New Ruling Regarding Missing Wills

The Virginia Supreme Court recently issued a ruling relating to missing wills and the legal standard courts must apply when an original will cannot be found and therefore an executor seeks to probate a copy of the will. While the case does not necessarily make new law, it does clarify that the proponent of the non-original will is not required to prove why the original will was lost. First, some background: under Virginia law, a party seeking to probate a will must probate the original will, and not a photocopy. In the vast majority of instances, this does not pose …

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