Month: July 2018

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Supreme Court Of Virginia Now Requires Votes Of Two Writ Panel Members To Grant An Appeal

Recently, the Supreme Court of Virginia decided to change its practice regarding the requirements for granting a petition for appeal to create a seemingly higher threshold.

A party who wishes to appeal a lower court decision to the Supreme Court of Virginia typically may not take the appeal directly before the full Supreme Court.  In fact, the majority of cases never reach the stage where the full Supreme Court renders a decision on the appeal.  Generally, an appealing party may petition the Supreme Court to seek a writ granting a full review of the issues raised by the appealing party (known as “assignments of error” at the Supreme Court of Virginia).  That party may present 10 minutes of oral argument in support of the petition to a panel of three justices and/or senior justices.  Parties opposed to the appeal may file a brief in opposition to the petition for appeal but may not present oral arguments.  The panel then deliberates in private and decides whether to grant any of the assignments of error raised by the petition for appeal for a review and decision by the full Supreme Court or to deny the petition.

Traditionally, if any one member of the panel wanted to grant an assignment of error, then the appeal would be granted notwithstanding the views of the other members of the panel.  However, in the summer of 2017, the Supreme Court changed its practice to require two members of a panel, a majority, to support a full review of an assignment of error in order for a writ to be granted.

While the exact motivations for this change are unknown, this shift from prior practice may have been the result of a desire by the Supreme Court to require greater consensus on whether assignments of error merit review by the full Supreme Court.  This change may help ensure that the Court and the parties involved only have to expend the considerable time and resources that accompany a review by the full Court when more than one justice or senior justice deem the issue worthy of a full Court review.

As details of deliberations and the votes of particular panel members are not released to the public, it is difficult to predict to what extent, if at all, this change will affect the percentage of writs granted.  It is possible that the requirement of a second affirmative vote may diminish the percentage of cases granted because the Court will no longer grant appeals due to the interest of one justice or senior justice.  However, it is also possible that the lion’s share of the appeals granted may have already been deemed meritorious by multiple members of a writ panel, so this change might not have a significant impact.  Further, it is also possible that the current members of the Supreme Court may be so used to the prior practice that a second panel member may vote in favor of a petition out of courtesy to a single member who believes that an assignment of error merits a full review.

While time will tell whether this change has a significant impact on the writ panel stage of appeals to the Supreme Court of Virginia, advocates before the Supreme Court should consider this recent change when preparing their arguments before a writ panel.

For more information on this change or the writ panel process generally, please contact W. Thomas Chappell, Esquire at tchappell@vanblacklaw.com.

 

Last Will and Testament with Fountain Pen Last Will and Testament with Fountain Pen Last Will and Testament with Fountain Pen Last Will and Testament with Fountain Pen Last Will and Testament with Fountain Pen

Virginia Law Provides Avenue To Save Imperfectly-Executed Wills

It could be a family’s nightmare.  A deceased relative tried to make his or her will, but it was improperly executed.  Therefore, the relative’s estate will be distributed pursuant to an old will or, if there is no other will, the intestate laws of the Commonwealth.  Such a result could lead to that person’s estate being distributed in a way inconsistent with his or her wishes and/or negative tax consequences.  However, in Virginia, a family has a legal avenue to attempt to avoid these problems by ensuring that a deceased relative’s will is upheld notwithstanding imperfections in its execution.

Generally, wills in Virginia may not be considered valid and admitted to probate unless they were executed in compliance with Virginia Code Section 64.2-403, which provides that a document is not a valid will unless it was (1) written wholly in the testator’s handwriting and signed by the testator or

Last Will and Testament with Fountain Pen

(2) if the will is not wholly in the testator’s handwriting, then it must be (i) signed by the testator or by another person in the presence of the testator and according to the testator’s direction, in a way that it is obvious that the name is intended to be a signature, and (ii) signed in the presence of at least two competent witnesses who are present at the same time and who also sign the will in the presence of the testator.  Given that these requirements are very technical, it is possible for an individual, especially one who does not have the assistance of an attorney, to make a will without realizing that he or she failed to satisfy the criteria for proper execution.

Virginia law provides that there is a chance that imperfectly-executed wills may be admitted to probate.  In 2007, the General Assembly passed a law providing that a will that was not properly executed in conformity with Virginia Code Section 64.2-403 may be admitted to probate in some circumstances.  Virginia Code Section 64.2-404 provides that if a document was not executed in compliance with Virginia Section 64.2-403, the document may be treated as if it was executed properly if the person or persons seeking to have the will admitted to probate shows by clear and convincing evidence that the decedent intended for the document to serve as his or her will.  Notably, while other imperfections in the execution process may be excused, Section 64.2-404 may not be used to excuse requirements regarding the decedent’s signature except for in limited circumstances.

In order to attempt to probate such a document, the proponent must file suit in a state circuit court within one year of the decedent’s death seeking to have the court enter an order that the document be admitted to probate.  Further, all people interested in the matter must be added as parties.  Thus, anyone whose rights would be affected by the probating of the document must be before the court.  A court may have to appoint guardians ad litem for interested people who are minors or who are otherwise unable to protect their own rights.

In summary, Virginia Code Section 64.2-404 provides an opportunity for a family to have a deceased relative’s estate distributed pursuant to the wishes expressed in his or her will, even if that will was improperly executed.  Families with improperly-executed wills of deceased relatives should seek the advice of legal counsel to evaluate whether to attempt to have such wills admitted to probate.

For more information on this topic, please contact W. Thomas Chappell, Esq. at tchappell@vanblacklaw.com.

 

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