Tag Archives: Will

Legislative Update: Virginia’s General Assembly Acts to Reduce Inconsistencies between Revocable Living Trusts and Wills

As more people elect to use revocable living trusts for estate planning purposes instead of traditional wills, the disposition of property will increasingly depend on the interpretation and determination of revocable living trust provisions.  Virginia’s General Assembly (“General Assembly”), Virginia’s state legislature, recently acted, with House Bill 746, to address some of the principles governing revocable living trusts.  House Bill 746, which has been signed into law, amends several statutory sections of the Virginia Code relating to trust and estate law (collectively, the “Amendments”).  The Amendments serve to reduce some inconsistencies in the substance and interpretation of revocable living trusts …

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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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Doctors Notes for Will Signings: Should You Get One?

I recommend that before an ill or very elderly person signs a will (or trust), that the estate planning attorney obtain a note from a doctor as to the person’s mental capacity. Doing so will help create a record that will make it more challenging to contest the will (or trust) on the basis that the person lacked testamentary capacity (i.e., the requisite mental capacity in order to execute a will or trust). I’ve litigated over 100 estate disputes, and more often than not, the doctors notes that I see are poorly drafted and do not help much. My goal …

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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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Changes To Elective Share Law in Virginia Will Lead To More Litigation

The Virginia General Assembly overhauled Virginia’s elective share statute this past year, and one of the big results will likely be an increase in litigation. My colleague Brett Herbert recently wrote a blog post summarizing some of the more significant changes in the elective share framework that go into effect on January 1, 2017 (that post can be accessed here). This post focuses on a specific change that adds a time requirement in which a surviving spouse asserting a claim for the elective share must file a lawsuit to determine the elective share. Under the prior Virginia law, when a surviving …

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A Post-Mortem, Spousal Surprise: Can My Husband Write Me Out of His Will?

Imagine this potentially devastating situation.  Your spouse unexpectedly dies.  You find his will and discover, shockingly, that he left everything to his adult son (or his mistress)!  Is there anything you can do? This situation commonly arises when a husband and wife are separated but not yet divorced. Under Virginia law, a spouse possesses certain rights to what is known as the elective share.  Think of the elective share as a floor for a spouse’s inheritance.  It can be invoked even if the deceased spouse writes the surviving spouse out of his or her will. Under current law, a surviving …

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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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Recognizing Signs of Elder Abuse (and Traits of Elder Abusers)

My goal in this blog post is to discuss character traits of elder abusers so that you can recognize them and hopefully protect yourself, your family, and your friends. I’ve handled over 100 estate disputes, and in a sizeable number of those cases, elder abusers committed an array of unethical actions including isolating, threatening, and pressuring elderly people to change their estate plans. I previously wrote a lengthy blog post that discussed the signs of undue influence of elders. That blog post can be found by clicking here. By contrast, this blog post focuses on the character traits of elder abusers. …

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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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