Category Archive: Litigation

1. Is Your Loved One’s Will Legally Binding?

   January 22, 2015 2:25 pm Leave a Comment

   In the months after a loved one’s death, procedures and deadlines are far from the minds of the family. Unfortunately however, a death in the family often leads to legal disputes over the deceased’s property. Lean economic times and the increased availability of legal forms on the internet have led more and more people to attempt to draft wills, trusts and powers of attorney without the assistance of a lawyer. In this climate, the potential for disputes increases.

   Even if the deceased has left a will, disputes can arise as to the will’s validity. To be legally acceptable, a will must be signed by the deceased (the testator). It must also be signed by two witnesses, unless the testator writes every word in his or her own handwriting. Most importantly, the testator must have sufficient mental capacity. A testator must understand that a will is being made, what property is held, and who family members are. If any of these elements is missing, a court can find the will invalid.

   In addition, a will can be deemed invalid if it seems likely that the testator wished to do one thing, but a third person coerced or unduly influenced him or her to do something else. The coercion does not have to be physical, and usually is not. Rather, the typical case of undue influence involves a testator who is alert but feeble, and a person in a position of trust—a relative, friend, or spiritual advisor—who takes advantage of the person’s frailty, convincing them to change the will.

   Finally, even if a will is valid, the executor under the will has an obligation to administer the estate fairly with respect to the persons named in such will. If an executor abuses such power, or favors certain interests over others, then such executor may be liable for any harm done.

   Whether you are the beneficiary under a will that is being challenged, or your loved one has left a questionable will, it is important that you seek the advice of a qualified attorney. Most will challenges must be filed within one year after the will is probated, and even shorter deadlines must be observed in some cases. Similarly, if an agent under a power of attorney, an executor, or a trustee has acted improperly, the law imposes short deadlines for seeking relief.

   The Estate Litigation Team at Parker, Pollard, Wilton & Peaden has extensive experience in these types of disputes—from challenging forged wills to defending claims of undue influence.  If you find yourself in a similar situation, we invite you to contact us for a consultation.

2. Ignition Interlock Devices: Painful Consequences of DUI

   April 29, 2014 2:19 pm Leave a Comment

   In Virginia, all those convicted of DUI must now have an ignition interlock device installed in their vehicle in order to drive on a restricted license, even if it’s a first DUI and there is no evidence of blood alcohol content at all. An ignition is a pain for a number of reasons: it is not inexpensive; it is difficult to coordinate installation; the driver has to blow into it each and every time the vehicle is started.

   Of course, an ignition interlock device is only one negative consequence of a DUI. When you add the other direct, incidental and consequential costs (fine, court costs, counseling, increased insurance, limitation on where and when you can drive during the restricted driver’s license period) the total costs for being convicted of a DUI escalate.

3. Virginia Texting-While-Driving Law

   2:18 pm Leave a Comment

   The police can, and will, pull you over for “texting-while-driving.” Texting-while-driving covers the operation of a motor vehicle while manually entering letters/text in a handheld personal communication device as a means of communicating with another person. The term also includes reading any email or text message transmitted to the device or stored within it.

   For a first-time offense, the fine is $125. For a second, or any subsequent offense, the fine is $250.

   If a police officer stops you, be courteous. He or she will likely treat the incident as a routine traffic stop and may ask for your license, registration, and insurance information. The officer may even ask you for your cell phone. If you feel uncomfortable surrendering your phone, you may refuse. If the officer doesn’t have a warrant, he/she cannot seize it without your consent.

   The following are specifically exempted from being defined as “texting-while-driving”: reading a name or number stored within the device while operating a motor vehicle; reading Caller ID information while operating a motor vehicle; using factory-installed or aftermarket GPS or wireless communication devices as part of a digital dispatch system; and operating a motor vehicle and using a device to report an emergency. Finally, any action performed on a personal communication device while being lawfully parked or stopped does not qualify as “texting-while-driving”.

4. Divorce: Potential Pitfalls in Equitable Distribution of Property

   2:17 pm Leave a Comment

   Equitable distribution is the process by which a court divides a divorcing couple’s property. Many couples look to avoid going to court by negotiating a property settlement agreement, which is a contract where they decide how to divide their property. However, it is important to consider all assets, circumstances and contingencies in such an agreement.

   Life insurance is often an overlooked piece of the divorcing couple’s portfolio. Spouses who are the beneficiary of a life insurance policy would, in most cases, desire to continue to be the beneficiary of the life insurance policy. The court can order — or the parties can agree — that one spouse is required to maintain life insurance for the benefit of the other spouse. The most important reason for continuing the beneficiary status of one spouse is when the other spouse is paying child support and or spousal support to the other spouse.

   Imagine a situation where a husband is ordered to pay child and spousal support to his wife. Three months later, the husband dies without a life insurance policy or with a policy that doesn’t name the children or the wife as beneficiaries. The wife, who was expecting a stream of payments from her former spouse, now receives nothing, and she and her children are in a very unenviable financial position. This situation could have been avoided if the husband had been ordered or had agreed to provide life insurance for the benefit of his wife and children.