Tag Archives: Virginia Supreme Court

Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party

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.

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Virginia Supreme Court Clarifies Remedies In Power Of Attorney Lawsuits

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. The issue arose due to language contained in the Virginia Uniform Power of Attorney Act, Section 64.2-1615(1), which provides that agents under powers of attorneys are “liable to the principal or the principal’s successors in interest for the amount required to [r]estore the value of the principal’s property to what it would have been …

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A Bewildering Bequest: The Supreme Court of Virginia Weighs in on the Meaning of a Will’s Residuary Clause

Most people are familiar with the basic contents of a will.  Wills typically name an executor, order the payment of debts and expenses, and provide for the distribution of the testator’s (will-maker) property.  Many wills provide for specific property to pass to specific people.  These are known as specific bequests or devises.  In addition to such bequests or devises, most wills contain a residuary clause – sort of a catch-all disposition for all of the rest and remainder of the estate.  They typically read something like this: “I leave all of the rest, residue, and remainder of my property, of …

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Virginia Supreme Court Issues New Opinion on the Standard to Admit a Will to Probate

Last month, the Virginia Supreme Court handed down a ruling in an estate dispute that clarified the standard for admitting a will to probate, and further discussed the standard for admitting testimony concerning the decedent’s will when the genuineness of the will is called into question. The case – Canody v. Hamblin, 2018 WL 3471372 – provides a helpful overview of Virginia law on those two issues, and the following is a summary of the case facts and the holdings. Facts The decedent’s daughter petitioned the circuit court to have a document admitted to probate as her father’s will. The will …

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Raise It or Waive It?: The Virginia Supreme Court Weighs in on When Parties in Estate Litigation Must Raise (or Waive) Testamentary Capacity/Undue Influence Claims

Imagine your aging, widowed mother (“Mother”) has dementia and moves into assisted living.  You live about four hours away from Mother.  Your sibling (“Sibling”) lives about five (5) minutes away from Mother.  Sibling becomes increasingly involved in Mother’s affairs.  One day Sibling provides you with a copy of Mother’s recently changed will.  The new will leaves everything to Sibling.  Given Mother’s dementia, you are highly concerned because you don’t think Mother had the capacity to make the new will.  You ask Sibling about the new will.  Sibling says “It’s what Mother wants.” Later, Sibling files a lawsuit seeking to be …

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Undue Influence in Virginia: Does the Undue Influencer Have to Be a Beneficiary?

Without question, one of the most common estate disputes we see centers around allegations that one person unduly influenced another person to write (or re-write) a will or trust.  The typical situation involves an elderly person, no longer capable of living independently, who becomes increasingly reliant on another person for care and assistance. Under Virginia law, undue influence occurs when a testator’s free will is destroyed due to the influencer’s close relationship with the testator.  This theory is one of the most common methods used to attack a will or trust.  There are different ways to prove undue influence.  Undue …

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The Role of the Commissioner of Accounts in Virginia Estate and Trust Administration

People typically picture the probate process going something like this: a person dies, you find their will, you take the will to the courthouse, the executor pays the debts, and then the executor distributes the assets.   Of course, the process is much more complicated and time-consuming than that.  Moreover, there are also multiple people involved in the process of administering an estate or testamentary trust.  One of these critical people is the Commissioner of Accounts. If you are serving, or have served, as the executor or administrator of an estate in Virginia, you will no doubt have been in contact …

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I Do…I Do…Wait, Did We?: The Virginia Supreme Court Weighs in on the Timing of Marriage Licenses and Ceremonies

Imagine you’ve thought you were married for a decade and all of a sudden your spouse denies that you were ever married at all.  The Virginia Supreme Court (the “Court”) recently decided just such a case in Levick v. MacDougall.  The central issue in that case was whether a married couple must first obtain a marriage license before “solemnizing” their marriage. The facts were straightforward: Richard and Deborah were “married” on December 21, 2002 at a celebration at Richard’s house with friends and family.  The officiant, on the day of the “wedding”, discovered that Richard and Deborah had not obtained …

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Virginia Supreme Court Issues New Estate Dispute Opinion

Back in June of this year, the Virginia Supreme Court handed down a ruling in an estate dispute case that, while it didn’t particularly break new legal ground, provides a helpful overview of the current state of Virginia law regarding Virginia’s Slayer Statute as well as claims contesting a deed of gift on the basis of undue influence. In Gelber v. Glock, 293 Va. 497 (2017), the Virginia Supreme Court reviewed rulings of the trial court in a case involving allegations by several of the decedent’s children that, among other things, their sister wrongfully induced their mother to execute a …

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