Category Archives: Disinheriting Family Members

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

Who Would Inherit Luke Skywalker’s Estate?

Spoiler Alert:  This post contains spoilers about the recent Star Wars movie, The Last Jedi. At the climax of The Last Jedi, Luke Skywalker appears via Force Projection on the planet Crait to confront his nephew Kylo Ren and save the last of the Rebels.  Exhausted from appearing via Force Projection to ensure the escape of the Rebels, Luke Skywalker peacefully passes on and became one with the Force.  His Jedi robes gently collapse into a pile as we gaze to the broad and optimistic horizon ahead. As we ponder profound issues such as Rey’s parentage, Leia’s apparent Force ability, …

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Posted in Celebrity Estate Disputes, Disinheriting Family Members, Elective share, General, intestacy, Legal Terminology, Will Disputes \ Comments Off on Who Would Inherit Luke Skywalker’s Estate?

Doctors Notes for Will Signings: Should You Get One?

I recommend that before an ill or very elderly person signs a will (or trust), that the estate planning attorney obtain a note from a doctor as to the person’s mental capacity. Doing so will help create a record that will make it more challenging to contest the will (or trust) on the basis that the person lacked testamentary capacity (i.e., the requisite mental capacity in order to execute a will or trust). I’ve litigated over 100 estate disputes, and more often than not, the doctors notes that I see are poorly drafted and do not help much. My goal …

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Posted in Disinheriting Family Members, Preventing Disputes, Trust Disputes, Will Disputes \ Comments Off on Doctors Notes for Will Signings: Should You Get One?

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?

Top Four Estate Disputes from 2016

With the end of 2016 upon us, now is a fitting time to look back at some of the top estate disputes from this past year. 2016 was a typical year in that, unsurprisingly, people continued to die and families continued to fight over estates. The following are some of the major estate disputes that graced the headlines this past year. Note that this is just a sample of some of the major ones; there were several rather prominent ones this past year that I’m unable to write about, whether because I or my colleagues at LeClairRyan represented parties in …

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Changes To Elective Share Law in Virginia Will Lead To More Litigation

The Virginia General Assembly overhauled Virginia’s elective share statute this past year, and one of the big results will likely be an increase in litigation. My colleague Brett Herbert recently wrote a blog post summarizing some of the more significant changes in the elective share framework that go into effect on January 1, 2017 (that post can be accessed here). This post focuses on a specific change that adds a time requirement in which a surviving spouse asserting a claim for the elective share must file a lawsuit to determine the elective share. Under the prior Virginia law, when a surviving …

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A Post-Mortem, Spousal Surprise: Can My Husband Write Me Out of His Will?

Imagine this potentially devastating situation.  Your spouse unexpectedly dies.  You find his will and discover, shockingly, that he left everything to his adult son (or his mistress)!  Is there anything you can do? This situation commonly arises when a husband and wife are separated but not yet divorced. Under Virginia law, a spouse possesses certain rights to what is known as the elective share.  Think of the elective share as a floor for a spouse’s inheritance.  It can be invoked even if the deceased spouse writes the surviving spouse out of his or her will. Under current law, a surviving …

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Who Would Inherit Darth Vader’s Estate?

Who would be the beneficiary of the estate of Darth Vader? The answer is more than just an exercise in Star Wars fiction; in fact, the answer can teach us important lessons about estate disputes in our real world. In case you did not read my earlier blog post, in which I asked the same question about Han Solo’s estate, you can find that post here. Note: for those who are not familiar with Star Wars, yet who want to follow along with the discussion below, it’s important to known that Anakin Skywalker and Darth Vader are the same person (Anakin …

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The Fictional Fight Over Han Solo’s Estate

Who would be the beneficiary of the estate of Han Solo?  Star Wars is obviously a fictional universe, and there is no indication in Episode 7 (or any other canon material that I’m aware of) that speaks to whether Han Solo had a will or not. Nevertheless, it’s both fun and educational to analyze the answer, because if the same laws in effect in Virginia were in effect in the Star Wars universe, Han Solo’s death would likely have set off a wave of litigation among numerous characters in a galaxy far, far away. First, let’s consider what assets Han …

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Top 10 Ways To Be Disinherited (And How To Avoid That) (Part 2)

This is Part 2 in the series of the top 10 factors that I’ve seen that lead to people being disinherited from a relative’s or friend’s estate plan. In Part 1, I discussed 5 of the 10 factors, and the following round out the final 5 factors. Knowing these factors will hopefully help ensure that you not only avoid being disinherited, but perhaps, more importantly, help ensure that you have deeper and more meaningful relationships with family and friends: 6) File a Guardianship and Conservatorship Action Against a Relative There are two main reasons why a person would file a …

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