Category Archives: New Laws

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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10 Arguments Against Pre-Death (Antemortem) Probate and Will Contests

There are a handful of states that allow a person to probate a will (and challengers to contest the validity of a will) before the testator (the person enacting the will) dies. In recent years, there has been a trend to expand the practice to more states. I had an interesting discussion about this issue at the recent Heckerling conference, and I wrote this blog post to discuss why I think the practice is a bad idea. First, some background: pre-death probate (also known as antemortem probate) is only permitted in a handful of states (including Ohio, Arkansas, North Dakota, and …

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Posted in New Laws, Preventing Disputes, Will Disputes \ Comments Off on 10 Arguments Against Pre-Death (Antemortem) Probate and Will Contests

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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New Ruling Has Implications for Expert Witnesses in Estate Litigation Matters

Editor’s Note: this blog post has since been superseded by new events. To see a discussion of the new events, please click here.   The other month, the Virginia Supreme Court issued an opinion that could have potentially significant implications for the use of expert witnesses in estate litigation matters. The ruling appears to bring Virginia law closer to the federal Daubert standard for the admissibility of expert witness testimony. First some background: In 1993, the United States Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) that the then-current test for the admissibility of expert …

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New Law Enables Possible Recovery Of Attorney’s Fees On Grounds Of Undue Influence

Last year, the Virginia General Assembly adopted a new law that went into effect on July 1, 2014.  Virginia Code Section 8.01-221.2. provides as follows: “In any civil action to rescind a deed, contract, or other instrument, the court may award to the plaintiff reasonable attorney fees and costs associated with bringing such action where the court finds, by clear and convincing evidence, that the deed, contract, or other instrument was obtained by fraud or undue influence on the part of the defendant.” In other words, the court has the option (note the use of the word “may”, as opposed …

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Posted in New Laws, Undue Influence \ Comments Off on New Law Enables Possible Recovery Of Attorney’s Fees On Grounds Of Undue Influence