Virginia Has A New Standard For Undue Influence In Will Contest Cases

Beginning July 1, 2022, Virginia has a new standard for undue influence in Will contest cases. For most Will contest cases in Virginia, the standard for undue influence will now involve a presumption that undue influence was exerted over the decedent (the deceased person). This is a profound change from the current (pre-July, 2022) state of the law (which merely created a temporary presumption that was extremely easy to overcome), and it will make it much easier to contest the validity of a Will in Virginia.

Text of the New Law

In the 2022 session, the General Assembly adopted Senate Bill 554, which adds a new section to the Virginia Code, which will be contained in Section 64.2-454.1., and will be titled: “Will contest; presumption of undue influence.”

The text of the bill states as follows:

In any case contesting the validity of a decedent’s will where a presumption of undue influence arises, the finder of fact shall presume that undue influence was exerted over the decedent unless, based on all the evidence introduced at trial, the finder of fact finds that the decedent did intend it to be his will.


Explanation of the New Law

Under current (pre-July, 2022) law in Virginia, the plaintiff who is seeking to challenge the validity of a Will on the basis of undue influence bears the ultimate burden of persuasion of doing so (I wrote a separate blog post on this issue that can be found here). The plaintiff’s burden of proof is one of “clear and convincing evidence”, which is a standard that is higher than the normal “preponderance” standard that applies in many civil cases. In other words, the plaintiff has the job of convincing the jury or judge that undue influence occurred, and if the plaintiff does not meet that burden of persuasion, the plaintiff will lose.

The new law completely alters the burden of persuasion in most circumstances. Now, the plaintiff receives the benefit of a “presumption” that undue influence was exerted over the decedent, and the burden now shifts to the defendant to rebut that presumption. In other words, the defendant now has the job of convincing the jury or judge that undue influence did not occur, and if the defendant does not meet that burden of persuasion, the defendant will lose.

I use the word “in most circumstances” because the law states that it applies “where a presumption of undue influence arises.” So that raises the question of when does a “presumption of undue influence arise”? Currently under Virginia law, a plaintiff enjoys the benefit of a “presumption of undue influence” if the plaintiff can prove at trial that: (1) the testator (i.e., the person who made the Will) was old when his Will was established; (2) he named a beneficiary who stood in a relationship of confidence or dependence; and (3) he previously had expressed an intention to make a contrary disposition of his property. However, under current law, this “presumption of undue influence” usually makes little practical difference because when the defendants present their evidence at trial, the presumption can be eliminated if a defendant simply offers some evidence that the testator’s free will was not overcome in making the Will. It’s incredibly easy to do that in almost all cases. So the practical effect is that the current (pre-July, 2022) presumption then goes away, and the burden of persuasion still falls to the plaintiff. (If any readers are interested in the nuances of this, please check out my blog post here).

The current (pre-July, 2022) standard was articulated by the Virginia Supreme Court in the 2018 case of Parson v. Miller (822 S.E.2d 169), but this new law alters a significant portion of the holding of that case.

Implications of the New Law

The biggest implication of the new law is that it will now be much easier for plaintiffs to contest Wills on the basis of undue influence. It will significantly change the strategy of a trial, as now the defendant will be put on the defensive, and the plaintiff’s attorney can emphasize, in closing argument, the theme of how the defendant must justify why the Will was freely enacted.

I don’t expect the new law to make much of a difference with respect to motions practice in undue influence cases. It was already extremely easy for a lawsuit alleging undue influence in the Will context to survive demurrer (under the standard set forth in Parson), and it is virtually unheard of for a Will contest case to be dismissed on summary judgment in Virginia state court.

Questions about the New Law

One interesting issue that litigants and the courts will need to work out is how the new law impacts the order of the presentation of the evidence at trial. In other words, will plaintiffs still go first and present their entire case; or will they only present facts needed to establish the presumption of undue influence, and then the defendant presents his case, and then the plaintiff presents the balance of his case?

And how will this impact lawsuits in which the plaintiff seeks to invalidate both a Will and a trust? Previously the standard was the same for contesting Wills and trusts on the basis of undue influence, but now they will have different standards. And will the General Assembly change the law on contests to trusts to bring it consistent with the new law on contests to Wills? Stay tuned, as there are numerous issues that will need to be worked through in light of this significant change.

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