Category Archives: Trust Disputes

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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Yes, Virginia, There Is A “No Contest” Clause

This is the first in a three-part series of blog posts on “no contest” clauses, inspired by a recent Virginia Supreme Court ruling. In this post, I’ll briefly explain what a no contest clause is, and provide a general overview of the law relating to no contest clauses. In the second part, I’ll discuss some of the key legal holdings of the recent Virginia Supreme Court ruling, and in the third part, I’ll examine some of the legal issues raised in the two dissenting opinions. First: what is a no contest clause? A no contest clause (also referred to as …

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Reptile Theory and Estate Litigation

How can estate litigators use the reptile theory to their advantage? Given the unique nature of estate disputes, do estate litigators enjoy a subject-matter advantage when it comes to the reptile theory? First, a brief summary of what the reptile theory is: in 2009, authors David Ball and Don Keenan published a book titled, Reptile: The 2009 Manual of the Plaintiff’s Revolution, which has since become rather influential and much-debated. One attorney aptly summarized the reptile theory as follows: The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the …

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Use Checklists to Avoid a Will Dispute

One of the easiest steps that an estate planning attorney can take to try to prevent a will that he drafted from being challenged is to have the witnesses to the will utilize a checklist in order to create a documented record that they observed that the testator had adequate testamentary capacity. First some background: in order for a will to be valid, the person executing the will (often referred to as the “testator”) must have “testamentary capacity” (which, in most states, is defined as the adequate mental ability to understand his family, his property, the fact that he’s making …

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Robin Williams Trust Dispute Highlights Importance of Precise Drafting

It’s unlikely that the late comedian Robin Williams would be laughing at the current dispute involving his family members. A dispute over the interpretation of certain language in his trust – pitting his widow Susan against his three children – is currently in litigation in Superior Court in Marin County, California. CNN.com Reports: Specifically, there’s one paragraph about certain items of Williams’ property that his beneficiaries have made into a tricky semantics debate. The paragraph assigns to Williams’ children all of his “clothing, jewelry, personal photos taken prior to his marriage to (Susan) … memorabilia and awards in the entertainment …

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