Virginia Fiduciary Law Blog

PERILS IN VIRGINIA ESTATE LITIGATION - Part IV

Suing the Estate's Lawyer....

The final installment of our four-part series of posts on standing and proper parties in fiduciary litigation may (pleasantly) surprise even veteran probate lawyers.  In Johnson v. Hart, another 2010 opinion of the Virginia Supreme Court, the question posed was whether “a sole testamentary beneficiary, in her individual capacity, may maintain a legal malpractice action against the attorney for the estate for the attorney’s allegedly negligent services rendered to the estate.”  The beneficiary argued that as the sole testamentary beneficiary, she was the beneficial owner of the assets of the estate, and thus permitted to bring a legal malpractice action in her own name.  The Virginia Supreme Court disagreed, reiterating that Virginia is a “strict privity doctrine” jurisdiction in legal malpractice cases, and that the “plaintiff must demonstrate the existence of an attorney-client relationship.”  Because the attorney in question was retained to represent the estate, not the plaintiff, the plaintiff ultimately failed to show any attorney-client relationship as a “threshold element.”

PERILS IN VIRGINIA ESTATE LITIGATION - Part III

May the Administrator Appeal pro se?

The third of the Virginia Supreme Court's recent opinions in our four-part installment also turned on standing or, more accurately, lack of standing.  In Hawthorne v. VanMarter, the decedent’s administrator was represented as a plaintiff by licensed counsel in the trial court on a claim of negligence for personal injuries.  After the jury trial resulted in a defense verdict, the administrator of the estate appealed “pro se.”  The Virginia Supreme Court considered the appellee’s objection to the estate’s appeal, holding that, under Virginia law, the administrator could not mount an appeal pro se but must be represented by licensed counsel.  The cause of action at issue belonged to the beneficiaries of the estate, which the administrator only served in a representative capacity.  The court dismissed the administrator’s pro se appeal.

 

PERILS IN VIRGINIA ESTATE LITIGATION - Part II

Thinking Before Qualifying as Administrator

In Part I of our four-post series on the perils in Virginia estate litigation, we discussed a recent Virginia Supreme Court opinion on proper parties. In that case, naming the "Estate" as the defendant proved fatal to the plaintiff's claims.  In Part II of our four post-series on the subject, we discuss another 2010 opinion by the Virginia Supreme Court.  

In Antisdel v. Ashby, the Virginia Supreme Court affirmed the dismissal of an action filed by an estate’s administrator for lack of standing—the converse of the complication encountered by the plaintiff in Helou (the subject of our first in a four-post series on standing and proper parties).  The estate’s personal representative in Ashby had properly qualified under Virginia law to serve as administrator for the purpose of bringing a wrongful death claim.  The administrator later brought suit not to assert a wrongful death claim, but personal injury “survival claims” instead—claims the decedent could have asserted during his lifetime in his own right.  The Virginia Supreme Court found that the applicable statute in the title of the Virginia Code governing Wills and Decedent’s Estates permits appointment of an administrator for purposes of bringing personal injury claims, wrongful death claims, or both. 

In Ashby, the order granting the appointment only reflected the administrator’s request to bring a wrongful death claim, however. Thus, the administrator lacked standing to prosecute the personal injury or “survival claims.” Affirming the dismissal of the case with prejudice, the court also rejected the administrator’s argument that the trial court should have modified the order of appointment nunc pro tunc.

PERILS IN VIRGINIA ESTATE LITIGATION - PART I

“MEASURING TWICE” BEFORE FILING SUIT

In 2010, the Virginia Supreme Court has published numerous opinions implicating the laws governing fiduciaries, wills, or trusts.   Four of these decisions are particularly instructive about two continuing perils:  standing and proper parties.  Here is a little teaser:  have you, as counsel of record, or has your lawyer, named the such-and-such “Estate” or the so-and-so “Trust” as the party—whether as plaintiff or defendant—in your case?  If so, you should read on, as we will bring you a four-part series of posts to discuss these cases on standing and proper parties.  Our first of four case discussions appears in the post below.

PART I:  HAVE YOU SUED THE "ESTATE" LATELY?

In Idoux v. Helou, the Virginia Supreme Court affirmed the dismissal of claims filed against the “Estate of Raja Alexander Helou.” The court reiterated that under Virginia statutes and Virginia precedent the “Estate” could not be a proper party to the lawsuit.  In Virginia, the proper party is the personal representative—in Helou, it would have been the executor.  The problem for the plaintiff in Helou was that the lawsuit filed against the “Estate” amounted to a “legal nullity.”  Accordingly, it did not toll, or halt, the running of the statute of limitation, which had expired. Therefore, the plaintiff could not amend his complaint to substitute the executor as the proper party.