Category Archives: Will Disputes

Practical Tips Regarding Oral Contracts to Make Wills

This blog post is part 2 of the series on oral contracts to make wills, and this post contains several practical tips for how a person can optimize his chances of winning a claim for breach of an oral contract to make a will. In part 1 of the series, I provided an overview of the law in Virginia concerning oral contracts to make wills, whereby a testator (the person making the will) enters into a contract with another person, with the testator agreeing to provide for him in his will, in exchange for the other party doing something for …

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UPDATE: Can an Intended (and Disappointed) Beneficiary Still Sue a Will’s Drafter?: The General Assembly of Virginia Enacts a Statutory Fix to the Thorsen Decision

Back in the summer I wrote a post discussing the impacts of the Thorsen decision by the Supreme Court of Virginia.  In Thorsen, a testator wanted to leave her estate to a charity if her daughter did not survive her.  The lawyer erred in drafting the will.  When the testator died several years later (with her daughter having predeceased her), the testator’s property went to other people, contrary to her intentions.  The charity, the intended beneficiary, sued the lawyer, asserting breach of contract for legal services. Thorsen was notable in that it held that Virginia common law permits intended third …

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Oral Contracts to Make Wills

The vast majority of people have no idea that Virginia law recognizes oral contracts to make a will. As a result, people often miss out on asserting a claim to an inheritance because they didn’t know that they had one to begin with. This blog post provides an overview of Virginia law on this issue. I’ll follow-up this blog post with another one in the coming weeks about practical tips for how people can optimize their chances of winning on a claim for an oral contract to make a will. Virginia has long enforced contracts to make a will, whereby …

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10 Arguments Against Pre-Death (Antemortem) Probate and Will Contests

There are a handful of states that allow a person to probate a will (and challengers to contest the validity of a will) before the testator (the person enacting the will) dies. In recent years, there has been a trend to expand the practice to more states. I had an interesting discussion about this issue at the recent Heckerling conference, and I wrote this blog post to discuss why I think the practice is a bad idea. First, some background: pre-death probate (also known as antemortem probate) is only permitted in a handful of states (including Ohio, Arkansas, North Dakota, and …

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Changes To Elective Share Law in Virginia Will Lead To More Litigation

The Virginia General Assembly overhauled Virginia’s elective share statute this past year, and one of the big results will likely be an increase in litigation. My colleague Brett Herbert recently wrote a blog post summarizing some of the more significant changes in the elective share framework that go into effect on January 1, 2017 (that post can be accessed here). This post focuses on a specific change that adds a time requirement in which a surviving spouse asserting a claim for the elective share must file a lawsuit to determine the elective share. Under the prior Virginia law, when a surviving …

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A Post-Mortem, Spousal Surprise: Can My Husband Write Me Out of His Will?

Imagine this potentially devastating situation.  Your spouse unexpectedly dies.  You find his will and discover, shockingly, that he left everything to his adult son (or his mistress)!  Is there anything you can do? This situation commonly arises when a husband and wife are separated but not yet divorced. Under Virginia law, a spouse possesses certain rights to what is known as the elective share.  Think of the elective share as a floor for a spouse’s inheritance.  It can be invoked even if the deceased spouse writes the surviving spouse out of his or her will. Under current law, a surviving …

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Do It Yourself Wills: Will They Lead to More Litigation?

Here’s my prediction: do it yourself wills, also referred to as “homemade wills” or “online wills” or “internet wills” (I’ll refer to them in this blog post as “DIY Wills”) will result in a significant (though not massive) increase in estate litigation, but society won’t see that spike for another decade or two. What are DIY Wills? The term encompasses wills that can be created by filling in blanks on a preexisting template, usually found online. A variety of companies offer such a service for a price that is somewhat significantly reduced compared to what an estate planning attorney would …

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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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Risks to Estate Planning Attorneys in Light of the Thorsen Case

There are several things that all estate planning attorneys (and those who advise them) need to be aware of in light of the Virginia Supreme Court’s recent ruling in Thorsen v. Richmond Society For The Prevention Of Cruelty to Animals, No. 150528, 2016 WL 3131004 (Va. 2016). My colleague Brett Herbert provided a helpful summary of the Court’s ruling in Thorsen in a prior blog post, which can be accessed here. This post shares some tips on how estate planning attorneys can attempt to minimize their legal exposure in light of the Thorsen ruling. Estate planning attorneys would be wise to insert into …

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Unfulfilled Expectations: May an Intended (and Disappointed) Beneficiary Sue a Will’s Drafter?

Imagine the following scenario.  Your elderly mother, your only surviving parent, wants to have a discussion with you about her estate plan.  She shows you her will and explains her intentions.  You look at the will and it seems to make sense.  She tells you she is leaving her estate to you upon her death.  She even provides you with a copy of her will and tells you where the original is.  You feel peace of mind knowing that your mother’s estate is (or should) be in order. A short time later, your mother dies.  You have no idea what …

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