Category Archives: Will Disputes

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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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, General, Guardianship/Conservatorship Proceedings, Legal Terminology, New Laws, Power of Attorney Disputes, Undue Influence, Will Disputes \ Comments Off on 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

Who Would Inherit Luke Skywalker’s Estate?

Spoiler Alert:  This post contains spoilers about the recent Star Wars movie, The Last Jedi. At the climax of The Last Jedi, Luke Skywalker appears via Force Projection on the planet Crait to confront his nephew Kylo Ren and save the last of the Rebels.  Exhausted from appearing via Force Projection to ensure the escape of the Rebels, Luke Skywalker peacefully passes on and became one with the Force.  His Jedi robes gently collapse into a pile as we gaze to the broad and optimistic horizon ahead. As we ponder profound issues such as Rey’s parentage, Leia’s apparent Force ability, …

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Posted in Celebrity Estate Disputes, Disinheriting Family Members, Elective share, General, intestacy, Legal Terminology, Will Disputes \ Comments Off on Who Would Inherit Luke Skywalker’s Estate?

Doctors Notes for Will Signings: Should You Get One?

I recommend that before an ill or very elderly person signs a will (or trust), that the estate planning attorney obtain a note from a doctor as to the person’s mental capacity. Doing so will help create a record that will make it more challenging to contest the will (or trust) on the basis that the person lacked testamentary capacity (i.e., the requisite mental capacity in order to execute a will or trust). I’ve litigated over 100 estate disputes, and more often than not, the doctors notes that I see are poorly drafted and do not help much. My goal …

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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

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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Posted in Court Opinions, General, Legal Terminology, New Laws, Will Disputes \ Comments Off on 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

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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