The Virginia Supreme Court recently handed down one of the most significant trust and estate litigation opinions in years. In the unanimous ruling in Hunter v. Hunter (Record No. 190260), the Court (for the first time) expressly approved of an alternative-pleading model whereby a trust beneficiary may first seek a declaratory judgment as to whether a proposed claim would trigger a no contest clause, and obtain a ruling on that threshold question, before deciding whether to proceed with the prosecution of the claim.
Full disclosure: I litigated the Hunter case on behalf of the successful appellant, both at the trial court level and on appeal. I may be biased, but I believe that the ruling’s impact is significant. Not only does the ruling bring clarity on a method of navigating no contest clauses, but it also briefly touches on numerous other areas of trust law that could come before the Court in the future. In the appeal from the trial court, we raised seven assignments of error, several of which touched on open issues of trust law in Virginia. While the Court ruled in our favor on one of the assignments, it didn’t reach the other assignments, but interestingly it mentioned some of those issues in its opinion.
CONTINUE READING . . .
As we make our way into a new year, it’s a good time to ask what trends we’re likely to see in 2020 in the world of estate litigation. Three main trends stand out in my mind: litigation over increasingly broad no contest clauses, an increase in contested guardianship and conservatorship litigation, and the advent of litigation over electronic wills.
In the recent Fairfax Circuit Court decision of In re Connolly (Case No. CL-2018-0002347), the trial court had to decide the issue of whether a testator (will maker) may condition a bequest on a beneficiary’s obtaining a divorce from his current spouse. While a testator may write whatever she desires in her will or trust, courts, in some circumstances, have the authority to invalidate provisions as void against public policy. A court will generally not, on its own initiative, invalidate such provisions. Rather, an interested person may have standing to bring a suit to seek a declaratory judgment asking the court to invalidate the provision based on public policy reasons. 
Last month, the Virginia Supreme Court handed down a new ruling that confirms that circuit courts lack the authority to delegate final authority to approve accountings to the Commissioner of Accounts. While this ruling (in Moni Henderson v. Stephanie P. Cook, Trustee and Conservator for Thomas E. Noojin, Record No. 180772) doesn’t necessarily break new legal ground, it does provide a helpful overview of the law relating to the process by which the Commissioner of Accounts reviews accountings subject to the circuit court’s final review of the accountings. 
Technology, particularly relating to communication, is ubiquitous and ever-expanding in scope and ability. From text messaging to social media, there are seemingly more ways to communicate now than ever before.
A common question on most financial/investment account applications is whether an account-holder desires to own the account with one or more persons, with or without survivorship. Owning an account with “survivorship” means that upon the passing of one account-holder, the entirety of the funds will pass to the surviving account-holder (regardless of what the departed account-holder’s will or trust provides).
The Virginia General Assembly passed a law in the 2019 legislative session that authorizes a successful plaintiff to receive an award of attorney’s fees in litigation under the Virginia Uniform Power of Attorney Act, where the court finds that the agent under the power of attorney breached his fiduciary duty.
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.
The identity of parties matters a great deal in litigation. The failure to sue the right person can have serious consequences. Even if a litigant has a solid case, naming the wrong party can prematurely end a case without the suit ever being heard on the merits. In some cases, courts permit amendments of lawsuits. In light of that, some may assume that a mistake may be overlooked or fixed by a court. Not so. For these reasons, it is critical to enlist the help of an experienced litigator when faced with an estate dispute. 
The Virginia Supreme Court recently issued a ruling that clarifies that under the Virginia Uniform Power of Attorney Act, trial courts may award monetary damages against an agent under a power of attorney, but may not issue an injunction directing that the agent must return money.
