Will Challenges — A Look at Some Recent Cases Examined by the Supreme Court of Virginia

I have begun to notice more calls to our law firm with questions about the validity of wills.  I predict we will continue to see more litigation surrounding wills as the baby boomers continue to age.  In fact, since 2018 we have had four cases reach the Supreme Court of Virginia — Feeney v. Feeney, Record Nos. 170031 and 170032 (April 12, 2018); Canody v. Hamblin, Record No. 170747 (July 19, 2018); D’Ambrosia v. Wof, Record No. 170521 (February 22, 2018); and Parson v. Miller, Record No. 171393 (December 20, 2018).  These four cases nicely lay out some guiding legal principles pertaining to will challenges.

Fenney involved a challenge to a provision of a will (the residuary clause).  In construing the language of the residuary clause, the Supreme Court noted its obligation was to make certain that the intention of the testator was carried out by review of the totality of the language in the will.  The Court also addressed the doctrine of judicial instructions (a doctrine that permits payment of attorney’s fees and expenses to be paid by the Estate if judicial instructions are needed to interpret an ambiguous will or trust). The Court noted that it had not previously recognized the doctrine of judicial instructions in prior cases.  It went on to note that even if the doctrine exists in Virginia law (an issue they did not decide), it did not apply in the instant case since the plaintiffs had consistently maintained that the language of the residuary clause was clear and unambiguous.

Canody involved a review of the standard for admitting a will to probate set forth under Virginia law (Va. Code Section 64.2-445).  The Court noted that the trial judge properly permitted testimony from a friend of the testator to establish that the first two pages of the will were consistent with the testator’s intent.  The Court also held that the trial court properly probated the will finding that the proponent of the will satisfied its burden of proof that the will was written and executed by a preponderance of the evidence, and that the attacker of the will did not meet its burden of showing fraud.

In D’Ambrosio the Supreme Court held that the trial court improperly determined that a will challenge was barred by the doctrines of claim preclusion, issue preclusion and judicial estoppel.  The Court reversed and remanded for the trial court to determine whether the testator lacked capacity and whether undue influence was present— two very common challenges in will contests.

Parson involved a will challenge asserting undue influence and lack of testamentary capacity.  The trial court granted a motion to strike the evidence as to testamentary capacity, but denied the motion as to undue influence.  The Supreme Court reversed and remanded the matter.   The Court noted that with respect to wills, the presumption of undue influence exists when the following elements are established:  (1) the testator 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. The Court noted that once the presumption of undue influence arises, the burden of producing the evidence tending to rebut the presumption shifts to the opposing party, however the burden of persuasion always remains with the contestant of the will.  The Court noted that undue influence must be established by clear and convincing evidence.

Under Virginia law, there are several common bases for contesting a will such as the following:

• The will was not properly executed rendering it invalid.
• The person did not intend for that will to be his or her last will.
• The will was signed by a person who lacked the mental capacity to execute the will.
• The person who executed the will did so under undue influence, duress or fraud.

If you believe that your loved one’s last will and testament was defective for any of the reasons set forth above, you should consult an attorney who can advise you on contesting the will.

Scott Ford, Esquire is co-founder of Ford Richardson based in Richmond, Virginia with satellite offices in Northern Virginia, Southwest Virginia and Hampton Roads.

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