ANALYSIS OF JANUARY 21, 2021 SUPREME COURT ORDER

(Posted January 21, 2021) After four weeks’ worth of dry wells, we strike at least some water today as the Supreme Court of Virginia issues a published order in a suit over a decedent’s estate. The case is Platt v. Griffith and comes to us from Henrico County Circuit Court.

The testator was a doctor on the Northern Neck who cared for patients for over 50 years before retiring. He made a will in 2008 that left his 700-acre family farm to a trust for the benefit of his second wife, with a ten-acre parcel going to each of his two daughters from a first marriage.

Two years later, the doctor revised his estate plan with a new will. This one gave the two daughters 20 acres each from the farm, and gave the rest of the estate to the second wife and the doctor’s son. It also gave the second wife all of the doctor’s other real and personal property.

Four years after that, the doctor executed a deed of gift, conveying all personalty on the farm and in a Richmond home to his second wife. And shortly before his death in 2016, he executed a second deed of gift. This one was a whopper; it conveyed the entire 700-acre farm to his son, reserving a life estate to his second wife. There was no mention of the two 20-acre bequests to the son’s sisters.

The sisters filed suit against their brother and stepmother, alleging “a breach of fiduciary duty, waste of the estate, constructive fraud, conversion, conspiracy to commit conversion, business conspiracy, and undue influence.” The suit alleged undue influence and conversion of $13 million in assets, and sought rescission of the deeds of gift, a money judgment, and an accounting.

The circuit court dismissed the suit, finding that any claims such as those asserted by the sisters belonged to the estate, not to them as jilted potential beneficiaries. Today the Supreme Court unanimously affirms, finding that the sisters’ claims “are inherently on behalf of the estate as they would have belonged to [the doctor] during his lifetime.” In such situations, only the personal representative has standing to sue.

But wait; doesn’t that mean that the doctor’s son, who qualified as personal rep, would be suing himself? The sisters argued that no personal rep would undertake such a suit. To this understandable question, the justices have a simple reply: “the appellants have failed to file a petition to remove and replace [the son] as personal representative of the estate.”

In a footnote, the court observes that the sisters’ claims to the 20-acre parcels never vested because the farm wasn’t part of the doctor’s estate at his death. This is called “ademption by extinction”: A specific bequest in a will is extinguished if the testator no longer owns the property at his death. I will gently suggest that you can use this information to win some bar bets. Never let it be said that reading VANA is an unproductive expenditure of time.