Category Archives: Trust Disputes

Virginia Has A New Standard For Undue Influence In Will Contest Cases

Beginning July 1, 2022, Virginia has a new standard for undue influence in Will contest cases. For most Will contest cases in Virginia, the standard for undue influence will now involve a presumption that undue influence was exerted over the decedent (the deceased person). This is a profound change from the current (pre-July, 2022) state of the law (which merely created a temporary presumption that was extremely easy to overcome), and it will make it much easier to contest the validity of a Will in Virginia. Text of the New Law In the 2022 session, the General Assembly adopted Senate …

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When Does a Trust Become Irrevocable? At the Settlor’s Death, or Upon the Settlor’s Loss of Capacity? Hunter v. Hunter’s Discussion of the Concept

This post is part 7 in our 7-part series on the Virginia Supreme Court’s ruling in Hunter v. Hunter (Record No. 190260). Today we focus on the opinion’s discussion of the issue of when a trust becomes irrevocable. Is it upon the death of the settlor (the person who created the trust)? Or at the time when the settlor loses the capacity to revoke the trust? You can find parts 1-6 of the series at the following links: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6. For better or for worse, the Virginia Supreme Court did …

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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By recent unpublished order in the matter of McMurtrie, v. McMurtrie, the Supreme Court of Virginia reversed a trial court’s ruling that a no contest clause (in terrorem clause) in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 While unpublished, the order nevertheless provides an instructive analysis of the legal framework for an increasingly common estate dispute scenario: whether a no contest clause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 Additionally, this unpublished order also applied certain principles from the Supreme Court’s recent Hunter v. Hunter decision.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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Posted in Commonwealth of Virginia, Court Opinions, Disinheriting Family Members, Elder Abuse, Elder Law Disputes, Family disputes, Fiduciary Duties, General, Gifts, Legal Terminology, New Laws, No Contest Clause, Preventing Disputes, Trust Disputes \ Comments Off on The Supreme Court of Virginia Hands Down a New Decision on the Applicability of a No Contest Clause in a Trust

“Gift Over” and No Contest Clauses: Hunter v. Hunter’s Discussion of the Concept

This post is part 4 in our 7-part series on the Virginia Supreme Court’s ruling in Hunter v. Hunter (Record No. 190260). Today we focus on the opinion’s discussion of the “gift over” rule and how that rule relates to a no contest clause. You can find parts 1-3 of the series at the following links: Part 1, Part 2, and Part 3. The “gift over” rule relates to what type of language a no contest clause must contain in order to be legally effective. English and early American courts required that in order for a no contest clause to …

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No Contest Clauses Protecting Fiduciary Misconduct: Hunter v. Hunter’s Discussion of the Concept

This post is part 3 in our 7-part series on the Virginia Supreme Court’s ruling in Hunter v. Hunter (Record No. 190260). Today we focus on an extremely important portion of the ruling that discussed concerns about how expansively-worded no contest clauses could protect unscrupulous trustees. To my knowledge, this is the first time that this concept has ever been addressed in a written opinion interpreting Virginia law, so this is a very significant development. For years, we’ve written on this blog about the dangers that increasingly-broadly-worded no contest clauses pose. The concern lies, in short, in the fact that …

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No Contest Clauses Are Strictly Construed: Hunter v. Hunter’s Discussion of the Concept

In Hunter v. Hunter (Record No. 190260), the Virginia Supreme Court devoted nearly a page of its opinion to discussing how no contest clauses in Virginia are strictly construed. Its discussion contains some new language that may prove to be helpful to litigants on this issue. In this second part of a seven-part series of blog posts on the Hunter case, we examine the implications of the Court’s discussion of this issue (note: part one of the series can be found here.

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Virginia Supreme Court Issues Significant New Decision on No Contest Clauses (Hunter v. Hunter)

The Virginia Supreme Court recently handed down one of the most significant trust and estate litigation opinions in years. In the unanimous ruling in Hunter v. Hunter (Record No. 190260), the Court (for the first time) expressly approved of an alternative-pleading model whereby a trust beneficiary may first seek a declaratory judgment as to whether a proposed claim would trigger a no contest clause, and obtain a ruling on that threshold question, before deciding whether to proceed with the prosecution of the claim. Full disclosure: I litigated the Hunter case on behalf of the successful appellant, both at the trial …

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Virginia Supreme Court Issues New Ruling Regarding Commissioner of Accounts

Last month, the Virginia Supreme Court handed down a new ruling that confirms that circuit courts lack the authority to delegate final authority to approve accountings to the Commissioner of Accounts. While this ruling (in Moni Henderson v. Stephanie P. Cook, Trustee and Conservator for Thomas E. Noojin, Record No. 180772) doesn’t necessarily break new legal ground, it does provide a helpful overview of the law relating to the process by which the Commissioner of Accounts reviews accountings subject to the circuit court’s final review of the accountings.

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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

How to Disinherit a Child: 5 Tips to do so Successfully

This blog post discusses the steps that parents can take to disinherit a child and, in doing so, maximize their chances that their disinherited child won’t successfully challenge the parent’s will or trust. When to Disinherit Clearly, no parent should necessarily want to disinherit a child. But, there are a range of situations that could make such a decision not only warranted, but also necessary. For example, some children completely ignore their parents, or act so disrespectfully towards them, that it would be entirely appropriate to disinherit a child. I’ve seen scenarios whereby children have been disinherited for having tried …

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Posted in Disinheriting Family Members, No Contest Clause, Trust Disputes, Undue Influence, Will Disputes \ Comments Off on How to Disinherit a Child: 5 Tips to do so Successfully