Category Archives: Court Opinions

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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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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Daubert In Virginia State Court: Where Do Things Stand Now?

The past few months have seen a flurry of developments as to the extent to which Daubert and its progeny are authoritative in Virginia state court proceedings. First, as I discussed in a blog post on May 17, 2015: The Virginia Supreme Court recently issued its ruling in Hyundai Motor Company v. Duncan, 766 S.E.2d 893 (2015) which cited the United States Supreme Court case of General Elec. Co. v. Joiner, 522 U.S. 136 (1997). General Elec. Co. is significant because it interpreted Daubert and expanded on its holding. The Virginia Supreme Court in turn justified its citation of General …

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Ruling Highlights the Need for Testamentary Intent for Holographic Codicil

Last month, the Fairfax, Virginia Circuit Court issued a written opinion that, while it does not break new law in Virginia, illustrates how a writing must demonstrate “testamentary intent” to qualify as a valid holographic codicil. First, some background: Virginia law provides that: “A will wholly in the testator’s handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator’s handwriting and signed by the testator is proved by at least two disinterested witnesses.” Va. Code § 64.2-403(B). Such a will is called a “holographic will”.  This code section creates an exception to …

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