Category Archives: Undue Influence

2022 Year in Review for Trust and Estate Disputes

In today’s blog post, I discuss a few notable developments from this past year in the field of trust and estate disputes. New Standard For Undue Influence In Will Contest Cases First, probably the most notable development from this past year is that Virginia’s General Assembly adopted a law that provides for a new standard for undue influence in will contest cases. Senate Bill 554 added a new provision to the Virginia Code in Section 64.2-454.1. I wrote a lengthy blog post this past summer on the bill (which blog post can be found here), so I won’t repeat myself …

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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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Jury Instructions on Undue Influence: Virginia Supreme Court Clarifies the Law

The Virginia Supreme Court recently handed down an important ruling that clarifies how juries should be instructed as to a presumption of undue influence in will contests. This opinion (Parson v. Miller, 822 S.E.2d 169) is essential reading for any estate litigator. Under Virginia law, a presumption of undue influence arises in certain circumstances relating to the execution of a will, pursuant to which the burden of proof shifts to the proponent of the will to rebut the presumption. Prior to Parson, there was some question as to the manner in which a jury should be instructed about the presumption …

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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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Raise It or Waive It?: The Virginia Supreme Court Weighs in on When Parties in Estate Litigation Must Raise (or Waive) Testamentary Capacity/Undue Influence Claims

Imagine your aging, widowed mother (“Mother”) has dementia and moves into assisted living.  You live about four hours away from Mother.  Your sibling (“Sibling”) lives about five (5) minutes away from Mother.  Sibling becomes increasingly involved in Mother’s affairs.  One day Sibling provides you with a copy of Mother’s recently changed will.  The new will leaves everything to Sibling.  Given Mother’s dementia, you are highly concerned because you don’t think Mother had the capacity to make the new will.  You ask Sibling about the new will.  Sibling says “It’s what Mother wants.” Later, Sibling files a lawsuit seeking to be …

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Virginia Supreme Court Issues New Estate Dispute Opinion

Back in June of this year, the Virginia Supreme Court handed down a ruling in an estate dispute case that, while it didn’t particularly break new legal ground, provides a helpful overview of the current state of Virginia law regarding Virginia’s Slayer Statute as well as claims contesting a deed of gift on the basis of undue influence. In Gelber v. Glock, 293 Va. 497 (2017), the Virginia Supreme Court reviewed rulings of the trial court in a case involving allegations by several of the decedent’s children that, among other things, their sister wrongfully induced their mother to execute a …

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Confronting Caretaker Abuse & Misconduct

While most caretakers for sick and elderly people are honest, occasionally families and friends are forced to deal with a dishonest caretaker who steals a person’s money; pressures him to change a will, trust, or power of attorney; pressures him to sign a deed; isolates him from family members, etc. A recent article highlights this unfortunate fact: A Newport News [Virginia] woman will serve a fraction of a 30-year prison sentence for stealing $30,000 from a woman she cared for. Michele Lee Conley, 43, received three-year prison sentences for 10 counts of forgery and uttering after she tricked a 92-year-old …

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The Ernie Banks Will Dispute Highlights Potential Concerns About Caregivers

The famous baseball player Ernie Banks was known for his positivity and his love of baseball (captured in his iconic phrase “Let’s play two,” referring to his desire to play a doubleheader every day). It’s ironic, then, that his estate has been the subject of a bitter dispute between his family and his caretaker. CNN.com Reports: “Banks family attorney Mark Bogen said Banks’ agent, Regina Rice, had the octogenarian sign a new will three months before his death. Our family thought that Ms. Rice was helping our father and watching over him while he was in Chicago,” son Joey Banks …

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Recognizing Signs of Undue Influence

Undue influence over elderly persons, disabled persons, and others is a large problem, which will only get worse as American society increasingly ages and the baby boomer generation prepares to transition large sums of wealth via their estate plans. It’s important for every family member, friend, neighbor, business colleague, etc., to be aware of the signs of undue influence so that they can protect their family members, friends, and associates. The law in Virginia (like the law in most states) defines undue influence as influence “sufficient to destroy [the] free agency” of a person. Jarvis v. Tonkin, 238 Va. 115, …

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Why You Should Avoid Filming a Will Signing

With few exceptions, filming or recording a will signing is usually a bad idea. Nevertheless, some estate planning attorneys still film certain will signings under the assumption that videotaping a will signing will provide tangible “proof” that the person executing the will was not suffering from a lack of testamentary capacity at the time of execution. There are several reasons why, in most instances, this is a bad idea. 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 …

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