Category Archives: Preventing Disputes

Prior Correspondence: A Key Tool in Preparing Your Estate Dispute Case for Trial

Technology, particularly relating to communication, is ubiquitous and ever-expanding in scope and ability. From text messaging to social media, there are seemingly more ways to communicate now than ever before. Is that correspondence admissible at trial? Trials are governed by the rules of evidence. These rules are detailed, nuanced, and not always intuitive. As practitioners, we typically become involved in estate disputes weeks, months, or even years after the initial dispute breaks out. During this time, a great deal of potentially relevant evidence has likely been generated through the exchange of emails, texts, letters, and the like.

Posted in Disinheriting Family Members, Elder Law Disputes, Elective share, General, intestacy, Legal Terminology, Preventing Disputes, Will Disputes \ Comments Off on Prior Correspondence: A Key Tool in Preparing Your Estate Dispute Case for Trial

What Happens When a Will’s Language is Inconsistent with the Titling of an Account Held with Survivorship?

A common question on most financial/investment account applications is whether an account-holder desires to own the account with one or more persons, with or without survivorship. Owning an account with “survivorship” means that upon the passing of one account-holder, the entirety of the funds will pass to the surviving account-holder (regardless of what the departed account-holder’s will or trust provides). A common question that we encounter is what happens when a will’s language is inconsistent with the titling of an account held with survivorship? The short answer is that the survivorship titling of the account will typically control over a …

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Posted in Disinheriting Family Members, Elder Law Disputes, Elective share, General, intestacy, Legal Terminology, Preventing Disputes, Will Disputes \ Comments Off on What Happens When a Will’s Language is Inconsistent with the Titling of an Account Held with Survivorship?

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 …

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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

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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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?

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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Practical Tips Regarding Oral Contracts to Make Wills

This blog post is part 2 of the series on oral contracts to make wills, and this post contains several practical tips for how a person can optimize his chances of winning a claim for breach of an oral contract to make a will. In part 1 of the series, I provided an overview of the law in Virginia concerning oral contracts to make wills, whereby a testator (the person making the will) enters into a contract with another person, with the testator agreeing to provide for him in his will, in exchange for the other party doing something for …

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Oral Contracts to Make Wills

The vast majority of people have no idea that Virginia law recognizes oral contracts to make a will. As a result, people often miss out on asserting a claim to an inheritance because they didn’t know that they had one to begin with. This blog post provides an overview of Virginia law on this issue. I’ll follow-up this blog post with another one in the coming weeks about practical tips for how people can optimize their chances of winning on a claim for an oral contract to make a will. Virginia has long enforced contracts to make a will, whereby …

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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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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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Posted in Celebrity Estate Disputes, Disinheriting Family Members, Elective share, Preventing Disputes \ Comments Off on Top Four Estate Disputes from 2016