Category Archives: General
Ambiguity in Real Property Provisions in Virginia Wills
In Virginia, real property given by will generally passes immediately upon the probating of the will after the death of the owner. A probated will has the same effect as a deed in passing title to the beneficiaries. However, if the will gives any interest in the land to the executor (for example, if the will gives the property to the executor to sell), then the property will pass to the estate “in trust” for distribution. Real property may also be devised with certain restrictions on use. Questions may arise when the language in the will is ambiguous. For example, a will may give …
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Virginia’s Harmless Error Rule May Permit a Will that Doesn’t Meet the Conventional Formalities to be Probated
Virginia has a version of the “harmless error rule” that may permit a will to be probated even if it does not strictly comply with the conventional formalities required for a writing to constitute a valid will. Traditionally, Virginia, like most states, required all wills to strictly comply with the legal requirement rules set forth in the code for when a writing can constitute a valid will. Any deviation, even if minor, usually meant that clerks and courts would not admit the will to probate as a valid will. That often led to some harsh results. In 2007, the Virginia …
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Appeals from the General District Court
Because Virginia General District Courts are not courts of record, there is little literature or case law surrounding jurisdictional issues in these Courts. Questions regarding the jurisdictions of appeals from General District Courts to Circuit Courts are sometimes difficult to answer. Most General District Court cases can be appealed to Circuit Court pursuant to Virginia Code § 16.1-106, and those appeals are heard de novo (i.e. the Circuit Court looks at the case with a clean slate as if it had never before been heard). However, where a General District Court case is dismissed on a jurisdictional motion by the …
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Statute of Limitations for Breach of Fiduciary Duty Actions
The statute of limitations for breach of fiduciary duty in Virginia is two years. Colgate v. Disthene Grp., Inc., 86 Va. Cir. 218 (Va. Cir. 2013); see Virginia Code §§ 8.01-243, 248. However, Virginia Code § 8.01–229(D) tolls the statute of limitations where a defendant obstructs the filing of an action. To prevail on this argument, a plaintiff must allege that the defendant “undertook an affirmative act designed or intended, directly or indirectly, to obstruct [the plaintiffs’] right to file [their] action.” Newman v. Walker, 270 Va. 291, 298, 618 S.E.2d 336 (2005). A defendant must intend to conceal the discovery of the …
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Must a Will/Codicil be Signed?: Virginia Court Finds an Unsigned Codicil to be Valid
By recent letter opinion in the matter of In re George William Estate of Asmuth, the Fairfax Circuit Court held that an unsigned codicil was indeed valid under Virginia Code Section 64.2-404. The letter opinion, while not binding authority across all of Virginia, provides an instructive analysis and look at the legal framework for resolving a relatively common estate dispute scenario: whether a codicil/will which is unsigned is of any legal validity. My colleague Will Sleeth previously wrote an instructive blog post on this topic. The facts of the case were that a testator (will-maker) (“George”) died in 2021. George …
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More Lawsuits Coming?: Virginia’s General Assembly Increases the Jurisdictional Limits in Virginia’s General District Courts for Certain Personal Injury Claims
Virginia has two levels of trial courts: the circuit courts and the general district courts. Circuit courts are considered “courts of record”, while general district courts are considered “courts not of record.” Both levels of trial court have their own unique jurisdiction to hear certain types of cases. The Recent Legislation In a significant development, the Virginia General Assembly recently passed legislation to increase the jurisdictional limit of Virginia’s general district courts from $25,000.00 to $50,000.00 for personal injury and wrongful death claims. This is a substantial change from prior law in Virginia, which had previously capped the damages maximum …
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The Supreme Court of Virginia Hands Down a New Decision on the Applicability of a No Contest Clause in a Trust
By recent unpublished order in the matter of McMurtrie, v. McMurtrie, the Supreme Court of Virginia reversed a trial court’s ruling that a no contest clause (in terrorem clause) in a trust did not apply to a trust settlor (trust creator). While unpublished, the order nevertheless provides an instructive analysis of the legal framework for an increasingly common estate dispute scenario: whether a no contest clause in a trust or will has been violated by the actions of a beneficiary. Additionally, this unpublished order also applied certain principles from the Supreme Court’s recent Hunter v. Hunter decision. Notably, Hunter v. …
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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 …
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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 …
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Who Would Inherit the Emperor’s Estate?
As loyal readers of this blog know, our team has previously posted analyses of the fictional estates of the Star Wars universe (Han Solo, Darth Vader, Luke Skywalker). We now turn our attention to who would inherit Emperor Palpatine’s estate in light of the most recent Star Wars film The Rise of Skywalker. Spoiler Alert: (this post contains spoilers about the recent Star Wars film The Rise of Skywalker). Everyone thought that Emperor Palpatine (“Emperor”) died at the end of The Return of the Jedi when Darth Vader heroically sacrificed himself, on behalf of his imperiled son Luke, and threw …
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