Lessons from Litigation: The Litigious Family Member

by Jonathan A. Nelson

Four years ago, the Virginia Supreme Court described the course of the Galiotos family estate and trust matters as the “brothers’ prolonged disputes.”  Since that time, those brothers have gone through seven more appeals, two dealing with the distribution division and five dealing more or less with the various court orders attempting to sort out the parties’ litigiousness, the last having been ruled on this past week (October 21, 2025).

The point of this post is not to sort out the finer points of the Galiotos dispute, but to point out that when creating or updating your estate plan, it is wise to anticipate potential problems and take steps to reduce the opportunities for your family to be torn apart by the very decisions meant to benefit and bring them together.

       1.       Avoiding Grounds for Ill Will 

Every family situation is different – there are no one-size-fits-all solutions in estate planning.  Terms that are practical for an only child may cause problems among three siblings with varying expectations, and wholly wrong for an estate plan where extended family will try to exert control.

That said, sometimes the provisions themselves raise problems. In my experience, otherwise reasonable beneficiaries are more likely to involve attorneys and courts when the terms favor secrecy, insulate the trustee from accountability, give ambiguous or voluminous instructions making it difficult to assess whether the trustee has been faithful, excessively withhold input and control from beneficiaries, and provide insufficient flexibility for unanticipated situations and events.

The choice of a trustee is also very important. A trustee with an overbearing personality may harm relationships with beneficiaries; an indecisive individual can hamper the effectiveness and timeliness of your trust’s administration.  If that person is still your choice, you may need specific terms to ameliorate those tendencies.

       2.       The Known Litigious Person  

Sometimes people you care about are already contentious or litigious.  My experience is that avoiding this issue does no one any favors.  There are estate planning tools you can consider, from carefully crafted no-contest clauses to distributions conditioned on waivers to using third party fiduciaries.

For the documents themselves, it is particularly important that an estate plan not create easy opportunities for litigation.  This means there is often a premium on the documents being shorter to avoid terms open to interpretation. It may also mean forgoing complex provisions and lengthy administration in favor of dividing the pie and allowing each to go his or her own way.

It is also important, regardless of the other mechanisms used, for your estate planning attorney to create robust contemporaneous documentation showing your documents set out your wishes.

       3.       Recognize That Sometimes Court is the Only Option

The basis of the observation from Federalist Paper 51 that “if men were angels, no government would be necessary” is no less true in estate planning.  Regardless of the care in assembling an estate plan, any of the people involved could step over a line.  In that case, outside resolution (often through a court) may be the only means of correcting it. 

An estate plan is a balance of probabilities, but is best served when it includes accountability, appropriate tools for administering efficiency while encouraging faithfulness to you and your beneficiaries, and the means of dealing with the unexpected – even in the face of a beneficiary’s, fiduciary’s, or outsider’s greed, intractability, self-importance, or obstreperousness. 

Going back to the Galiotos family, one piece of the dispute involved a trustee brother refusing to turn over financial information about a business he had been running but which the court found the other brothers were to become partners in. The court ended up being the necessary remedy. It seems to me that an estate plan designed to shield that fiduciary from having to make such disclosures or from the court compelling the same would not be the right answer.

Addressing difficult topics in advance – especially with an attorney experienced in both estate planning and estate litigation – may be the best way to ensure your intentions are not subjected to “prolonged disputes.”

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Lessons from Litigation (and LAW UPDATE): How to Prove a Deceased Person’s Claim

by Jonathan A. Nelson

The Virginia Supreme Court this month issued an opinion in Bon Secours-DePaul Medical Center, Inc. v. Rogakos-Russell, addressing Virginia’s rules on testimony with a deceased party, commonly called the “Dead Man Statute.”

 The Dead Man Statute has two basic components:

(1)      where there is a claim “by or against” a deceased person or his estate (and also for certain other unavailable persons), there must be disinterested corroboration of the basic elements of the claim; so, for instance, a child could not claim an oral contract with a deceased parent to be paid at $200 an hour from the Estate for lifetime personal care unless there was some outside confirmation of the agreement;

(2)       however, statements by the deceased person which would otherwise be hearsay may generally be admitted as evidence.

The two components have a recognized side effect: the hearsay statement allowable under the second part of the statute must be corroborated in accordance with the first part before it can be used by the interested party.

While the statute is often used defensively by an estate to require disinterested corroboration before acknowledging a claim, in the Bon Secours-DePaul case, the estate of a Greek Orthodox priest brought a wrongful death claim against a hospital, and the only direct evidence of the cause of eventual death was the decedent’s own oral statements that he fell after leaning on a stretcher bed whose wheels should have been locked.

Testimony that the decedent made these statements was introduced by several family members, another priest, and a doctor.  The Court found that the statements were sufficiently corroborated because the priest and the doctor were disinterested in the result, and further that the statements did not make the decedent a ‘witness’ requiring additional corroboration in their own right – he is a ‘hearsay declarant’ about whom the witnesses testified, and, having passed on to the next life, he has no remaining interest in the affairs of this life.

There is one important question which the Court declined to rule on in this case: whether the Dead Man Statute’s corroboration is even required where the hearsay is offered in favor of the deceased party rather than by its opponent.  However, because the Court ruled (and this is consistent with centuries of law) that the decedent is not a party, it seems to me a fair inference that the decedent’s survivors will still need corroboration – the decedent is not strictly on their side, either.  In fact, it is not always clear which side the decedent would be on. Consider an example where someone’s will has been probated and then a second will is introduced. Testimony of the decedent’s hearsay statements about which of the two documents is consistent with his wishes would likely be introduced by  both sides; it would create a rather uneven playing field if only the party who lost the race to the probate office had to corroborate the decedent’s statements.

The Dead Man Statute can be technical to apply.  If you are looking at litigation by or against an estate, including cases not directly related to probate issues, seek advice from counsel experienced in its use.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Lessons from Litigation: No-Contest Confusion Helps a Church

by Jonathan A. Nelson

Virginia has a long and storied relationship with no-contest (or ‘in terrorem’) clauses, where a beneficiary can be cut out of an estate or trust if they bring a legal challenge to the testamentary document or certain incidents of administration.  Many people writing estate plans see such clauses as an antidote to family dissention, protection against a particular black sheep, or just a way to provide a final “don’t tread on my estate plan” from the grave.

As with any sharp tool, these clauses must be used with care; not appreciating their dangers can have unintended consequences. A Virginia Supreme Court case from 1956,  Womble v. Gunter, provides a stark warning of this possibility.  The Court begins with a near-Dickensian opening paragraph presaging the conflict to come:

George F. Parramore, Sr., died testate on June 4, 1945. His somewhat complicated will, including five codicils, was duly probated and Benj. T. Gunter, Jr., and Quinton G. Nottingham qualified as executors. The testator devised and bequeathed all of his property in various amounts and proportions to his ten living children and numerous grandchildren.

In all, there were thirty named family beneficiaries among the six documents.  The Will had a no-contest clause, which ended with, “Should all my legatees and devisees contest my will, then my entire estate shall pass to Christ Episcopal Church in Eastville.”  Although not discussed in the opinion, once admitted to probate, the will and all five codicils became treated as one document, with the result that a challenge to even one portion became a challenge to the whole unless fully successful. 

The hitherto amicable family descended into dissention, centered on a suit to invalidate the will.  When the dust had settled, the trial court concluded that all thirty beneficiaries had challenged the will and lost any benefit from the estate. 

Although not in the Supreme Court record, I think it a good assumption that at least some of the codicils reflected changes between the interests of the different beneficiaries and changes of who the executors would be; further, because the changes were by codicil, the beneficiaries could see the changes over time.  This seems supported by the court’s finding that the family had fractured, “charging each other with misrepresentation, fraud and deceit,” and the suit brought “to satiate their dissatisfaction and impatience.”

The Virginia Supreme Court dealt with a number of questions raised by different groups of beneficiaries:

• Does it matter if the contest was brought in good faith or with probable cause?  Not here.

• Does it matter if a contestant withdrew before the final order?  No, they still brought the contest.

• Does it matter if a beneficiary was a minor and the contest was brought by a representative?  No.

Of importance for estate planning, the Court interpreted the clause strictly by the terms used in the will:

The court is not concerned with whether an heir or a devisee receives the property of a decedent. The normal freedom of the owner to dispose of his property as he sees fit should not be curtailed unless the disposition violates some rule of law or is against public policy.

Used indiscriminately, a no-contest clause can create difficulties resolving genuine disputes (such as working through this series of documents or ensuring a fiduciary is handling matters correctly), can disincentivize compromise (once the suit was filed, all benefit was lost unless successful), and may result in a more severe penalty than desired.

In Virginia, no-contest clauses are still upheld on the exact language actually used, as described in Hunter v. Hunter (Va. 2020):

We have reconciled these competing values by stating that no-contest provisions are simultaneously “strictly enforced” and “strictly construed.”  By strictly enforced, we mean that we will enforce the provision without any wincing on our part concerning its alleged harshness or unfairness — so long as the testator or settlor clearly intended the forfeiture.  By strictly construed, we mean that the intent to forfeit must be very clear. .    

So, for instance, a grantor of an irrevocable trust with a no-contest clause who is also its sole beneficiary forfeits his rights as beneficiary if he challenges the trust trying to get his money back.  McMurtrie v. McMurtrie (Va. 2021, unpublished).

Much of the animosity between George Parramore’s family members seems to have come not from the litigation itself, but in recriminating each other over the application of the no-contest clause.  Ultimately, the only winner was Christ Episcopal Church in Eastville, which was probably not the result Mr. Parramore was hoping for.    If you are thinking of using a clause like this, discuss the details with an attorney who has seen how they have been applied in administration and litigation so you get the result you are looking for when the terms are “strictly enforced” and “strictly construed.”

Next in the Lessons From Litigation series: How to Prove a Deceased Person’s Claim

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Lessons from Litigation: Draft for Longevity so You Don’t “Barr” Your Rights

by Jonathan A. Nelson

The Virginia Court of Appeals recently issued an unpublished opinion regarding a 1914 right of way easement used for logging, in Barr v. Garten Development, LLC.  An unpublished opinion is not precedent, but does yield practical advice.  Here are two lessons for drafting documents we can gain from the 100 years of history in this case.

First, keep the certainty of change in mind.  In Barr, the 1914 Deed establishing the right of way reserved the right to place across the land “a broad gauge railroad, and for narrow gauge railroad tracks to and from any mines… [and] wagon roads.”  Had the deed stopped there, the subsequent changes in transportation (coupled with the economic realities which led to releasing the mineral rights in 1979) might have decided this case before it started. 

Fortunately for the owner of the easement, the attorney in 1914 included a catch-all phrase reserving “all necessary rights of way… and more particularly for the proper ingress and egress….”  These were enough for the Court of Appeals to find the right of way included improving an unpaved road to the standards of the Department of Forestry for use by logging trucks.

I can see the benefit of applying this principle in a number of contexts. If I am writing a medical directive and someone has a strong preference regarding, say, being put on a ventilator, am I leaving enough flexibility and authority for the agent if the technology is radically different in ten years?  If I am creating a trust making sure minor children are taken care of, do I also write it so that if it doesn’t kick in until they are 50 they aren’t treated like children?  When crafting a transition plan for a family business, have I adequately provided for what happens if someone dies before the transition is completed?  Not everything can be anticipated, but attorneys should balance details and principles so we don’t build any time bombs into the documents.

Second, keep the terminology of previous documents as they were used, even if the language seems antiquated or just different from your usual wording.  A 1979 deed included a release of some rights; the landowner, who didn’t want logging trucks driving on a new and improved road over their land, argued that the release included the 1914 right of way.  The Court found, however, that the release of “all restrictions, easements and mineral rights” did not include the right of way because “on the face of the 1914 Deed, the terms ‘easement’ and ‘rights of way’ are not used interchangeably.”  Regardless of what the 1979 landowner thought he was getting, since abandonment of a right of way has to be “clear and unequivocal” on the face of the deed, he didn’t get it, and it may have been because the attorney drafting the deed didn’t preserve the original word usage.  If necessary, provide explanations of how the terms are used going forward, but don’t omit it; tell the story.

Sometimes attorneys need more time or documentation than a client expects, but this lost continuity is exactly the kind of issue we want to avoid – if we put land into a trust in a way that a divorce decree or premarital agreement prohibited, or try to transfer ownership of an LLC in a way that triggers a buyback with tax consequences, we aren’t doing the client any favors.  It is also a caution to those drafting their own documents, using online forms, or working outside their expertise: if you miss a term of art or don’t understand that in 1914 attorneys used a word differently, you may inadvertently create a big problem that we will read about in a Court of Appeals opinion.

Next in the Lessons From Litigation series: No-Contest Confusion Helps a Church

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.