Tag Archives: Estate litigation
Estate Litigation Predictions for 2020
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. Litigation Over Increasingly Broad No Contest Clauses I predict that in 2020, we’ll see increased litigation over the scope and enforceability of no contest clauses, also referred to as in terrorem clauses. In short, no contest clauses are provisions contained …
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4 Estate Litigation Predictions For 2018
The new year is a good time to look ahead at what trends we may expect to see in the area of estate litigation in 2018. I have 4 predictions. #1: The Volume Of Estate Litigation Will Continue To Increase We are very likely to see an increase in the volume of estate litigation in 2018. There are many reasons for this. First, our society is increasingly aging, and with more elderly people passing away each year, the scope of potential estates and trusts that could give rise to litigation increases. Second, more money is being passed down via inheritance …
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Be Careful With That Power of Attorney!: Arbitration Clauses and Nursing Home Lawsuits
On May 15, 2017, the Supreme Court of the United States handed down its opinion in Kindred Nursing Centers, L.P. v. Clark. This case addressed the issue of whether an agent acting pursuant to a power of attorney could bind an estate to an arbitration agreement. The facts of the case were simple. Beverly and Janis, family members of Joe and Olive respectively, each held their family member’s respective power of attorney. Joe and Olive moved into a nursing home operated by Kindred Nursing Centers, L.P. (“Kindred”). Beverly and Janis used their family members’ powers of attorney to sign an …
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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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Do It Yourself Wills: Will They Lead to More Litigation?
Here’s my prediction: do it yourself wills, also referred to as “homemade wills” or “online wills” or “internet wills” (I’ll refer to them in this blog post as “DIY Wills”) will result in a significant (though not massive) increase in estate litigation, but society won’t see that spike for another decade or two. What are DIY Wills? The term encompasses wills that can be created by filling in blanks on a preexisting template, usually found online. A variety of companies offer such a service for a price that is somewhat significantly reduced compared to what an estate planning attorney would …
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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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4 Steps To Take If An Estate Dispute Is Brewing
If an estate dispute is brewing (but is not yet in litigation), there are several important steps that people can take to maximize their odds of success if the matter proceeds to litigation. In the vast majority of states, people only have judicial standing to challenge a will or a trust after the person who executed the will or trust (referred to as the “testator” or “settlor,” respectively) has passed away. There are often scenarios where a person believes that the testator/settlor was pressured into making the will/trust; didn’t have adequate testamentary capacity to do so; etc., and the testator/settlor …
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Reptile Theory and Estate Litigation
How can estate litigators use the reptile theory to their advantage? Given the unique nature of estate disputes, do estate litigators enjoy a subject-matter advantage when it comes to the reptile theory? First, a brief summary of what the reptile theory is: in 2009, authors David Ball and Don Keenan published a book titled, Reptile: The 2009 Manual of the Plaintiff’s Revolution, which has since become rather influential and much-debated. One attorney aptly summarized the reptile theory as follows: The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the …
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Lost Wills: What To Do When The Original Can’t Be Found
Virginia law requires that an original will be probated (as opposed to a copy). Occasionally, this poses a problem as no one can locate the original will. In those instances, Virginia law provides that a proponent of a non-original will may petition the circuit court to order that a copy of the will be admitted to probate. As part of that petition, the petitioner will need to name as “necessary parties” to the petition any people who stand to receive a bequest under the will, as well as any people who would stand to inherit a portion of the decedent’s …
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