Category Archives: Trust Disputes

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?

The Role of the Commissioner of Accounts in Virginia Estate and Trust Administration

People typically picture the probate process going something like this: a person dies, you find their will, you take the will to the courthouse, the executor pays the debts, and then the executor distributes the assets.   Of course, the process is much more complicated and time-consuming than that.  Moreover, there are also multiple people involved in the process of administering an estate or testamentary trust.  One of these critical people is the Commissioner of Accounts. If you are serving, or have served, as the executor or administrator of an estate in Virginia, you will no doubt have been in contact …

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Posted in Court Opinions, Elder Law Disputes, Fiduciary Accounting Requirements, Fiduciary Duties, General, Guardianship/Conservatorship Proceedings, Legal Terminology, Trust Disputes, Will Disputes \ Comments Off on The Role of the Commissioner of Accounts in Virginia Estate and Trust Administration

Trust Decanting Disputes

As trust decanting becomes increasingly popular, we can expect to see more disputes and litigation regarding trust decanting. This blog post examines some of the main issues that will likely arise in those disputes. First, what is trust decanting? The Uniform Law Commission states: “’Decanting’ is the term used to describe the distribution of assets from one trust into a second trust, like wine is decanted from the bottle to another vessel. Decanting can be a useful strategy for changing the outdated terms of an otherwise irrevocable trust, but can also be abused to defeat the settlor’s intent.” Essentially, decanting …

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Trustee Removal Lawsuits: An Overview

How can a person remove a trustee of a trust? Depending on the language of the trust, there could be several ways. This blog post summarizes some of the options, and provides an overview of things to consider when a person wants to remove a trustee. First, the terms of the trust itself may provide procedures for the removal of a trustee. Oftentimes, comprehensively-drafted trust instruments will contain specific procedures whereby beneficiaries or a beneficiary may remove a trustee. Those procedures could require a specific reason for the trustee removal (such as misconduct on the part of the trustee) or …

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Who Would Inherit Darth Vader’s Estate?

Who would be the beneficiary of the estate of Darth Vader? The answer is more than just an exercise in Star Wars fiction; in fact, the answer can teach us important lessons about estate disputes in our real world. In case you did not read my earlier blog post, in which I asked the same question about Han Solo’s estate, you can find that post here. Note: for those who are not familiar with Star Wars, yet who want to follow along with the discussion below, it’s important to known that Anakin Skywalker and Darth Vader are the same person (Anakin …

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The Rise of Litigation Involving Trust Protectors

Disputes involving trust protectors are increasing in number and will likely only further increase in number in the coming years. This blog post discusses what a trust protector is, whether trust protectors owe fiduciary duties (and to whom), and why litigation involving trust protectors is likely to increase in the future. What Is A Trust Protector? A trust protector is a person who is named in a trust to exercise varying types of oversight functions with respect to a trustee, or to exercise certain powers with respect to amending the trust. The powers of a trust protector can vary widely, …

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4 Steps To Take If An Estate Dispute Is Brewing

If an estate dispute is brewing (but is not yet in litigation), there are several important steps that people can take to maximize their odds of success if the matter proceeds to litigation. In the vast majority of states, people only have judicial standing to challenge a will or a trust after the person who executed the will or trust (referred to as the “testator” or “settlor,” respectively) has passed away. There are often scenarios where a person believes that the testator/settlor was pressured into making the will/trust; didn’t have adequate testamentary capacity to do so; etc., and the testator/settlor …

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The Fictional Fight Over Han Solo’s Estate

Who would be the beneficiary of the estate of Han Solo?  Star Wars is obviously a fictional universe, and there is no indication in Episode 7 (or any other canon material that I’m aware of) that speaks to whether Han Solo had a will or not. Nevertheless, it’s both fun and educational to analyze the answer, because if the same laws in effect in Virginia were in effect in the Star Wars universe, Han Solo’s death would likely have set off a wave of litigation among numerous characters in a galaxy far, far away. First, let’s consider what assets Han …

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“No Contest” Clauses Part 3: The Rafalko Dissenting Opinions

This is the third in a three-part series of blog posts on “no contest” clauses. In this post, I’ll discuss some of the key points in the dissenting opinions in the recent Virginia Supreme Court ruling in the Rafalko case (777 S.E.2d 870) relating to no contest clauses. In Rafalko, the Virginia Supreme Court confronted the issue of whether certain actions violated a trust’s no contest clause. Part two of this series discussed the main takeaways from the majority opinion: (1) mere discourse relating to a challenge of a trust containing a no contest clause does not trigger the no …

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“No Contest” Clauses Pt. 2: The Rafalko Majority Opinion

This is the second in a three-part series of blog posts on “no contest” clauses. In this post, I’ll discuss some of the key points in the recent Virginia Supreme Court ruling (777 S.E.2d 870) in the Rafalko case relating to no contest clauses. In part three, I’ll discuss some of the key points in the dissenting opinions. In Rafalko, the Virginia Supreme Court confronted the issue of whether certain actions violated a trust’s no contest clause. The facts and procedural history of the case are lengthy and detailed, so in my discussion below I’ve only highlighted some of the …

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