Estate & Trust Litigation

Regrettably, there are many examples throughout history of the disgruntled heir or the scurrilous trustee who cause an estate or trust to become embroiled in litigation when reason and negotiation fail to resolve the disputes. When the validity of the decedent’s Will is questioned, or when beneficiaries petition for the judicial removal of a trustee, or when the surviving second spouse files a claim to an elective share of the augmented estate of the decedent, emotions run high and battle lines are drawn. Our attorneys are experienced in the negotiation, mediation and, where necessary, litigation of disputes arising in estates and trusts.


Given that estate planning is, by its very nature, a private expression of one’s intentions regarding the disposition of his or her estate, it stands to reason that certain potential heirs will hold expectations which are not met when the testator dies. The circumstances of the testator at the time of execution of the will may lead to claims of undue influence, lack of testamentary capacity, and forgery which all too often find their way into court. In the case of trust litigation, it is often the misconduct or inaction on the part of the trustee that forces beneficiaries to seek judicial intervention for resolution. There is a trend towards private mediation of estate and fiduciary disputes, often facilitated by a retired judge, as an alternative to costly and vexatious litigation in the courts.


Executors and trustees must act in compliance with a high fiduciary standard of conduct, and they have specific duties imposed upon them by law. These duties include the requirements to act impartially with respect to all beneficiaries, to keep estate and trust beneficiaries informed, to avoid self-dealing, and to act in the best interests of the beneficiaries. The ultimate sanction for breaching these duties is removal, often accompanied by financial penalties as well. Beneficiaries often consult with counsel to determine the possible remedies to the breach of fiduciary duties by their trustee.


Virginia law provides certain rights and priorities to surviving spouses, including the right to claim an elective share of the augmented estate of the decedent spouse. The identification and calculation of the value of assets in the augmented estate is a cumbersome process, particularly where gifts were made by the decedent during his or her lifetime. The most common circumstance leading to such claims is the death of a parent in a second or later marriage where the surviving spouse has received less than the elective share amount. This scenario often results in a challenge by the decedent’s adult children to the elective share claim of their stepmother. If this claim must be litigated, it leads to the costly and laborious process of formal discovery of documentary evidence which will either support or defeat the elective share claim.


Executors and trustees, whether they are individuals, professionals, trust companies or banks, are held to a fiduciary standard of conduct in the administration of the estate or trust. Accordingly, the breach of fiduciary duties by an executor or trustee, such as failure to preserve trust property or to follow invest according to minimum legal standards, subject them to removal and the imposition of penalties, including forfeiture of fiduciary commissions. Since executors are appointed formally by the courts, one must resort to the courts to present evidence which justifies removal. In the case of wayward trustees, modern trust instruments should contain mechanisms for the orderly removal and replacement of a trustee. If the trust is silent, there are statutory provisions in the Virginia Uniform Trust Code which give aggrieved beneficiaries an avenue for relief from a failed fiduciary.
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