The statute of limitations for breach of fiduciary duty in Virginia is two years. Colgate v. Disthene Grp., Inc., 86 Va. Cir. 218 (Va. Cir. 2013); see Virginia Code §§ 8.01-243, 248. However, Virginia Code § 8.01–229(D) tolls the statute of limitations where a defendant obstructs the filing of an action. To prevail on this argument, a plaintiff must allege that the defendant “undertook an affirmative act designed or intended, directly or indirectly, to obstruct [the plaintiffs’] right to file [their] action.” Newman v. Walker, 270 Va. 291, 298, 618 S.E.2d 336 (2005). A defendant must intend to conceal the discovery of the cause of action by “trick or artifice” and must have actually concealed it from the plaintiff for the statutory tolling to apply. The concealment cannot be passive. Thus, in an estate context, if a claimant can show that a trustee/estate administrator actively blocked a claimant’s ability to file suit, the statute of limitations may be extended.
Virginia has one other statute of limitations savings clause: Virginia Code § 8.01–249(1), which states that, in actions for fraud or mistake or to rescind a contract for undue influence, the claim accrues when the fraud, mistake, misrepresentation, deception, or undue influence is discovered or by the exercise of due diligence reasonably should have been discovered. However, multiple courts in Virginia have ruled that this so-called discovery rule does not apply to breach of fiduciary duties because the Virginia code explicitly lays out the causes of action subject to the discovery rule, and breach of fiduciary duty is not one of those enumerated categories. As such, the Virginia General Assembly has specifically excluded breach of fiduciary duty from the scope of the discovery rule. See Jones v. Shooshan, 855 F.Supp.2d 594, 602–603 (E.D.Va.2012); Colgate, supra.
In the context of Estate and Trust litigation, estate administrators/executors and trustees owe fiduciary duties to the estate/trust and the beneficiaries. If a beneficiary suspects a breach of the fiduciary duty, it is imperative that the beneficiary thoroughly investigate the possible wrongdoing and bring suit within two years of the alleged act of wrongdoing. If the beneficiary fails to do so, she could waive her ability to bring a claim for breach of fiduciary duty.
