Tag Archives: Commonwealth of Virginia

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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Virginia Supreme Court Issues New Ruling Regarding Guardianship Orders

A recent Virginia Supreme Court case highlights the importance of using precise language in an order appointing a guardian, as well as ensuring that when a guardian files suit on behalf of a ward, the guardian sues in the correct capacity. The Virginia Supreme Court recently handed down its ruling in Lopez-Rosario v. Habib, 785 S.E.2d 214 (2016), which dealt with an appeal from the Fairfax County Circuit Court. The Court confronted the issue of whether the trial court properly dismissed a medical malpractice claim on the ground that the plaintiff filed suit in her own name, despite the fact that …

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Misconduct Remedies Against an Agent Under a Power of Attorney

In a prior blog post, I discussed the duties of an agent under a power of attorney. In this blog post, I discuss the remedies that people have against an agent under a power of attorney when the agent commits misconduct. The first issue is who has standing to pursue legal action against an agent under a power of attorney? Virginia has adopted a modified version of the Uniform Power of Attorney Act that spells out the categories of people who can seek judicial relief against an agent. Under Virginia Code Section 64.2-1614, the following are some of the parties …

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Duties of an Agent Under a Power of Attorney

Many average people are named as agents under a power of attorney for a family member or friend, and most have little to no idea what they are getting themselves into. Many people also are aware of the fact that a relative may serve as agent under a power of attorney for a family member or friend, and may be ignorant of how much financial mischief that person could commit with that authority. This blog post outlines the duties of an agent under a power of attorney. I will follow-up this blog post with another post in the coming weeks …

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The Rise of Litigation Involving Trust Protectors

Disputes involving trust protectors are increasing in number and will likely only further increase in number in the coming years. This blog post discusses what a trust protector is, whether trust protectors owe fiduciary duties (and to whom), and why litigation involving trust protectors is likely to increase in the future. What Is A Trust Protector? A trust protector is a person who is named in a trust to exercise varying types of oversight functions with respect to a trustee, or to exercise certain powers with respect to amending the trust. The powers of a trust protector can vary widely, …

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The Fictional Fight Over Han Solo’s Estate

Who would be the beneficiary of the estate of Han Solo?  Star Wars is obviously a fictional universe, and there is no indication in Episode 7 (or any other canon material that I’m aware of) that speaks to whether Han Solo had a will or not. Nevertheless, it’s both fun and educational to analyze the answer, because if the same laws in effect in Virginia were in effect in the Star Wars universe, Han Solo’s death would likely have set off a wave of litigation among numerous characters in a galaxy far, far away. First, let’s consider what assets Han …

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Posted in Celebrity Estate Disputes, Disinheriting Family Members, Slayer Rule, Trust Disputes, Will Disputes \ Comments Off on The Fictional Fight Over Han Solo’s Estate

“No Contest” Clauses Part 3: The Rafalko Dissenting Opinions

This is the third in a three-part series of blog posts on “no contest” clauses. In this post, I’ll discuss some of the key points in the dissenting opinions in the recent Virginia Supreme Court ruling in the Rafalko case (777 S.E.2d 870) relating to no contest clauses. In Rafalko, the Virginia Supreme Court confronted the issue of whether certain actions violated a trust’s no contest clause. Part two of this series discussed the main takeaways from the majority opinion: (1) mere discourse relating to a challenge of a trust containing a no contest clause does not trigger the no …

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“No Contest” Clauses Pt. 2: The Rafalko Majority Opinion

This is the second in a three-part series of blog posts on “no contest” clauses. In this post, I’ll discuss some of the key points in the recent Virginia Supreme Court ruling (777 S.E.2d 870) in the Rafalko case relating to no contest clauses. In part three, I’ll discuss some of the key points in the dissenting opinions. In Rafalko, the Virginia Supreme Court confronted the issue of whether certain actions violated a trust’s no contest clause. The facts and procedural history of the case are lengthy and detailed, so in my discussion below I’ve only highlighted some of the …

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Yes, Virginia, There Is A “No Contest” Clause

This is the first in a three-part series of blog posts on “no contest” clauses, inspired by a recent Virginia Supreme Court ruling. In this post, I’ll briefly explain what a no contest clause is, and provide a general overview of the law relating to no contest clauses. In the second part, I’ll discuss some of the key legal holdings of the recent Virginia Supreme Court ruling, and in the third part, I’ll examine some of the legal issues raised in the two dissenting opinions. First: what is a no contest clause? A no contest clause (also referred to as …

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