FAQs

Under Virginia law (and under the law of many other states too), there are several grounds to try to invalidate a will. The following are some of the more common grounds.

1. First, if the person executing the will did not have the required “testamentary capacity” (a legal term that essentially means adequate mental ability) to sign the will at the time he executed it, then the will may be able to be declared invalid. Under Virginia law, a person generally needs to adequately comprehend four things at the time he signs a will in order to have testamentary capacity: (i) his family members, (ii) his property, (iii) that he’s making a will, and (iv) how the will disposes of his property. If you can prove that at the time of the signing of the will the person executing the will did not adequately comprehend those things (whether due to sickness, mental decline, or any other condition), a judge or jury will likely declare the will to be invalid.
2. Second, if the person executing the will signed it as a result of “undue influence”, then the will may be able to be declared invalid. Undue influence can be the result of threats or pressure from another person. Some of the more common forms of undue influence result from people making threats that they will no longer care for a person if he doesn’t leave them all (or most) of his assets; from people making threats that they will harm a person if he doesn’t make a provision for them in his will; and from a caregiver or family member who repeatedly badmouths or lies about another family member to try to influence a person to change his will.
3. Third, if a will is a result of fraud, then the will may be able to be declared invalid. Fraud is a misstatement of a fact that causes another person to materially rely upon that misstatement (the term “materially” means that it played an important role in causing the person to rely on that misstatement). Some of the more common forms of fraud in the context of wills are: a son or daughter lies about other siblings to mom or dad, causing mom or dad to think that they did something really bad, and mom or dad disinherits them as a result; someone persuades an elderly person to “sign a document” that they say is “just a form” when really it’s a will; and someone tells an elderly person that their will says something, when really it says something different.
4. Fourth, if a will is not executed in compliance with the legal requirements needed for a valid will, it may be able to be declared invalid. Virginia law (and the laws of other states) spell out various requirements relating to the need for a will to be in writing and signed by the party making the will, and witnessed by two witnesses. In Virginia, and certain other states, a “holographic will” is also valid (this is a will that is entirely in the handwriting of the person making the will and signed by him, but not witnessed by any witnesses). Also, in Virginia and certain other states, if a will is not executed in accordance with these formal requirements, it can still constitute a valid will if a person can offer certain evidence that the will was meant to be the true will of the person who passed away.

This is just a very basic discussion of some of the grounds to try to invalidate a will. Because the laws are very fact specific, a person considering challenging a will should consult with an experienced estate litigation attorney.

An executor is a person tasked with the obligation to “administer” a deceased person’s estate. In general, this entails collecting that person’s property, paying off the person’s debts, and distributing the person’s assets in accordance with the provisions contained in the will. If a person decides to file a lawsuit to invalidate a will, the executor will be the person that the challenger sues. In many cases, the executor will be able to use the assets of the estate to pay for an attorney to represent the executor in that lawsuit (in seeking to uphold the validity of the will). If you’ve been named executor and you believe that a person may challenge the will, it is important to speak with an experienced estate litigation attorney as soon as possible. The attorney will be able to advise you of your legal rights and can work with you to formulate a plan to either attempt to prevent a lawsuit, or defend a lawsuit if one is filed.

The law relating to invalidating trusts is very similar in Virginia to the law relating to invalidating wills. Please see the answer to question #1 above, under the “Will disputes” section. One difference relates to the requirements to create a trust, which are more stringent than the comparatively liberal rules relating to the creation of a valid will.

Under Virginia law, trustees of most types of trusts are required to provide certain information to persons so that they can be informed about the administration of the trust. The requirements depend upon whether the person is a “beneficiary,” a “qualified beneficiary,” a “distributee,” or a “permissible distributee.” The following is a very generalized layman’s explanation of some of these terms (that is subject to numerous caveats), but painting with a broad brush, a “beneficiary” includes someone who has a present or future interest in a trust as a beneficiary; and a “qualified beneficiary” includes someone who is permitted to receive a distribution from the trust of income or principal, and further includes a certain class of people who would be entitled to such at some future point. A trustee is required to keep a qualified beneficiary of a trust reasonably informed about the administration of the trust and of the material facts necessary for him to protect his interests. Additionally, a trustee is required to respond to a beneficiary’s request for information relating to the administration of the trust, unless doing so would be unreasonable under the circumstances. With respect to regular reporting requirements, a trustee of an irrevocable trust is required to send to distributees or permissible distributees of trust income or principal, and to other qualified or nonqualified beneficiaries who request it, at least once per year, a report describing the trust’s property, assets, liabilities, receipts, and disbursements (including how much money the trustee took as compensation). If the trustee is not providing this information to you, it’s important to speak to an experienced estate litigation attorney who can help you obtain this information by making a demand on the trustee for the information. In our experience, frequently when a trustee is failing to provide this required information, it is because the trustee is attempting to conceal some misconduct on his part.

Under Virginia law, and unless the terms of a trust specifically provide otherwise, a trustee is obligated to comply with the “prudent investor rule”. That rule states that: “A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.” Certain types of actions could violate this rule, such as (i) a trustee of a trust for a young disabled person investing all of the assets in cash (while knowing that there will be little growth to cover the beneficiary’s projected long lifespan), (ii) investing in certain risky funds, or (iii) failing to keep himself informed about the investments. If you believe that the trustee of your trust is not properly investing or managing the assets, you should contact an experienced estate litigation attorney who can help you make a demand on the trustee to change his investment decisions (or who can seek to recover for any losses as a result of imprudent investing decisions).

First, contact an estate litigation attorney as soon as possible who can work with you to develop a plan to deal with the situation. Depending upon the severity of the situation, the estate litigation attorney may advise you to contact the Department of Social Services (or the equivalent governmental agency in states outside of Virginia) or the police. Moreover, the estate litigation attorney will be able to help advise you as to whether your parent/relative has in place a power of attorney that will permit you to act on his behalf. If there is not a power of attorney in place, the attorney will be able to discuss with you the option of (i) speaking to your parent/relative about establishing a power of attorney, or (ii) if your parent/relative does not have the requisite mental capacity required to validly execute a power of attorney, petitioning the court to have you or another person appointed as the “guardian and conservator” of the parent/relative. In short, those two positions are court-appointed roles whereby a person is tasked with the legal obligation to care for and oversee a person’s physical affairs (guardian) and financial affairs (conservator).

First, contact an estate litigation attorney as soon as possible who can work with you to develop a plan to deal with the situation. Virginia law provides for a relatively inexpensive procedure to obtain information and documents from an agent under a power of attorney relating to certain actions that the agent took within the past five years. The estate litigation attorney can also advise you of the merits of filing a lawsuit seeking to hold the agent under the power of attorney accountable for any improper actions that he’s taken. Also, the estate litigation attorney can discuss with you the merits of filing a court action whereby you seek to have yourself or someone else appointed as the “guardian and conservator” for your parent, (and as part of that court action, you also seek to have the judge revoke the power of attorney at the same time). In short, those two positions are court-appointed roles whereby a person is tasked with the legal obligation to care for and oversee a person’s physical affairs (guardian) and financial affairs (conservator).

Yes, potentially. When a person becomes the guardian and/or conservator for his parent, that person gains substantial authority. While Virginia law provides certain checks and balances on that authority, one of the biggest potential grounds for misconduct lies in the fact that under Virginia law, a person who is subject to a guardianship and/or conservatorship still may have the testamentary capacity required to make a will (in other words, that person is not automatically deemed to be incapable of making a will by virtue of the fact that he has a guardian and/or conservator). This creates a potentially dangerous situation whereby the guardian/conservator has substantial contact with, and control over, that person, yet in the eyes of the law, that person still can change his will. You can probably easily see the potential for mischief: it would not be difficult for the guardian/conservator to attempt to pressure the person to change his will. Therefore, if one of your siblings or someone else is attempting to be appointed as guardian and/or conservator for your parent, you should consult with an estate litigation attorney who can advise you on your options for dealing with the situation, and help you put together a plan to attempt to minimize any mischief by the guardian/conservator as it relates to the estate plan of the person who is the subject of the guardianship/conservatorship.

Under Virginia law, a person may file a competing petition for the appointment of a different guardian/conservator than the one proposed by the other person. Virginia law spells out certain criteria that judges will factor into their decisions when trying to rule between competing people who are each trying to be appointed as a guardian/conservator. Two of the most prominent factors are “the suitability of the proposed guardian or conservator, and the best interests of the [person who will be the subject of the guardianship/conservatorship]”. Because these criteria are very broad and open ended, it is very common for competing people to provide evidence of things like (i) how often they have visited and cared for the person, (ii) how often they can visit and care for the person, (iii) how the care they could provide would minimize disruptions in the person’s current day to day routines, (iv) their own good moral character, (v) poor character on the part of the competing person, and (vi) any earlier statements by the subject of the guardianship/conservatorship as to whom he would prefer to care for him. Contested guardianships and conservatorships are often some of the ugliest legal proceedings there are because each side seeks to build himself up and tear down the other person. If you believe that you’ll find yourself in a situation where a person may contest your appointment as guardian/conservator, or you need to contest someone else’s petition to be appointed guardian/conservator, you should consult with an experienced estate litigation attorney as early as possible in order to maximize your chances of success.