Category Archives: New Laws

A Life Estate or Something Else?: The Virginia Supreme Court Adds Some Clarity on the Creation and Scope of Life Estates in Virginia

By recent opinion in the matter of Sandra Flora Snead Larsen v. Pamela Larsen Stack, et al., the Virginia Supreme Court upheld a Trial Court’s decision relating to ambiguous provisions in a will relating to purported life estates. The opinion provides an instructive analysis and look at the legal principles relating to a somewhat common estate dispute scenario. The facts of the case were that the Testator’s (will maker) will (“Will”) divided his estate between his wife (“Wife”), two children (“Children”), and grandchildren. At issue was a certain provision of his Will that left certain real property (the “Cell Tower …

[ CONTINUE READING ]

Posted in Commonwealth of Virginia, Court Opinions, Disinheriting Family Members, Elder Law Disputes, Family disputes, General, Legal Terminology, Life Estate, New Laws, Will Disputes \ Comments Off on A Life Estate or Something Else?: The Virginia Supreme Court Adds Some Clarity on the Creation and Scope of Life Estates in Virginia

Virginia Supreme Court Upholds Judgment Against Power of Attorney Agent for Breach of Fiduciary Duty

By recent unpublished order in the matter of Harold v. Devening, Administrator of the Estate of Donald Wayne Ayers, the Virginia Supreme Court upheld a monetary judgment entered against a power of attorney agent for breach of fiduciary duty. The order provides an instructive analysis and look at the legal framework for a relatively common estate dispute scenario. The facts of the case were that the principal under the power of attorney (the person signing the power of attorney) (“Principal”) moved in with a family friend, Harold (“Agent”), about nine months before his passing. Principal passed away in 2013 with …

[ CONTINUE READING ]

Posted in Beneficiary Designation, Commonwealth of Virginia, Disinheriting Family Members, Elder Law Disputes, Family disputes, Fiduciary Duties, General, Legal Terminology, New Laws, Power of Attorney Disputes, Will Disputes \ Comments Off on Virginia Supreme Court Upholds Judgment Against Power of Attorney Agent for Breach of Fiduciary Duty

Estate Litigation Predictions for 2020

As we make our way into a new year, it’s a good time to ask what trends we’re likely to see in 2020 in the world of estate litigation. Three main trends stand out in my mind: litigation over increasingly broad no contest clauses, an increase in contested guardianship and conservatorship litigation, and the advent of litigation over electronic wills. Litigation Over Increasingly Broad No Contest Clauses I predict that in 2020, we’ll see increased litigation over the scope and enforceability of no contest clauses, also referred to as in terrorem clauses. In short, no contest clauses are provisions contained …

[ CONTINUE READING ]

Posted in Court Opinions, Guardianship/Conservatorship Proceedings, New Laws, No Contest Clause \ Comments Off on Estate Litigation Predictions for 2020

Recovering Attorney’s Fees in Power of Attorney Litigation: Virginia General Assembly Passes New Law Permitting the Recovery of Fees

The Virginia General Assembly passed a law in the 2019 legislative session that authorizes a successful plaintiff to receive an award of attorney’s fees in litigation under the Virginia Uniform Power of Attorney Act, where the court finds that the agent under the power of attorney breached his fiduciary duty. The law constitutes an addition to Virginia Code Section 64.2-1614, and states as follows: E. In a judicial proceeding under this chapter, if the court finds that the agent breached his fiduciary duty in violation of the provisions of this chapter, the court, as justice and equity may require, may …

[ CONTINUE READING ]

Posted in Fiduciary Duties, New Laws, Power of Attorney Disputes \ Comments Off on Recovering Attorney’s Fees in Power of Attorney Litigation: Virginia General Assembly Passes New Law Permitting the Recovery of Fees

Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party

The identity of parties matters a great deal in litigation.  The failure to sue the right person can have serious consequences.  Even if a litigant has a solid case, naming the wrong party can prematurely end a case without the suit ever being heard on the merits.  In some cases, courts permit amendments of lawsuits.  In light of that, some may assume that a mistake may be overlooked or fixed by a court.  Not so.  For these reasons, it is critical to enlist the help of an experienced litigator when faced with an estate dispute.

Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, Elective share, General, Legal Terminology, New Laws, Will Disputes \ Comments Off on Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party

A Bewildering Bequest: The Supreme Court of Virginia Weighs in on the Meaning of a Will’s Residuary Clause

Most people are familiar with the basic contents of a will.  Wills typically name an executor, order the payment of debts and expenses, and provide for the distribution of the testator’s (will-maker) property.  Many wills provide for specific property to pass to specific people.  These are known as specific bequests or devises.  In addition to such bequests or devises, most wills contain a residuary clause – sort of a catch-all disposition for all of the rest and remainder of the estate.  They typically read something like this: “I leave all of the rest, residue, and remainder of my property, of …

[ CONTINUE READING ]

Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, Elective share, General, intestacy, Legal Terminology, New Laws, Preventing Disputes, Will Disputes \ Comments Off on A Bewildering Bequest: The Supreme Court of Virginia Weighs in on the Meaning of a Will’s Residuary Clause

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 …

[ CONTINUE READING ]

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 …

[ CONTINUE READING ]

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 …

[ CONTINUE READING ]

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 …

[ CONTINUE READING ]

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