Category Archives: New Laws

Legislative Update: Virginia’s General Assembly Acts to Reduce Inconsistencies between Revocable Living Trusts and Wills

As more people elect to use revocable living trusts for estate planning purposes instead of traditional wills, the disposition of property will increasingly depend on the interpretation and determination of revocable living trust provisions.  Virginia’s General Assembly (“General Assembly”), Virginia’s state legislature, recently acted, with House Bill 746, to address some of the principles governing revocable living trusts.  House Bill 746, which has been signed into law, amends several statutory sections of the Virginia Code relating to trust and estate law (collectively, the “Amendments”).  The Amendments serve to reduce some inconsistencies in the substance and interpretation of revocable living trusts …

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Posted in Elder Law Disputes, General, Legal Terminology, New Laws, Trust Disputes, Will Disputes \ Comments Off on Legislative Update: Virginia’s General Assembly Acts to Reduce Inconsistencies between Revocable Living Trusts and Wills

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

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?

I Do…I Do…Wait, Did We?: The Virginia Supreme Court Weighs in on the Timing of Marriage Licenses and Ceremonies

Imagine you’ve thought you were married for a decade and all of a sudden your spouse denies that you were ever married at all.  The Virginia Supreme Court (the “Court”) recently decided just such a case in Levick v. MacDougall.  The central issue in that case was whether a married couple must first obtain a marriage license before “solemnizing” their marriage. The facts were straightforward: Richard and Deborah were “married” on December 21, 2002 at a celebration at Richard’s house with friends and family.  The officiant, on the day of the “wedding”, discovered that Richard and Deborah had not obtained …

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Posted in Court Opinions, Divorce, General, Legal Terminology, New Laws \ Comments Off on I Do…I Do…Wait, Did We?: The Virginia Supreme Court Weighs in on the Timing of Marriage Licenses and Ceremonies

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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Posted in Court Opinions, General, Legal Terminology, New Laws, Will Disputes \ Comments Off on 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

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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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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