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The judgment dismissing this action on summary judgment is affirmed. Kim (ORDER) 12/07/2017 In two litigations raising the issue whether a decedents will and trust were the product of undue influence by his brother, the attorney who drafted the instruments, the widows claims are rejected.
In the context of testamentary documents, a presumption of undue influence arises upon proof that (1) the testator was enfeebled in mind when the testamentary document was executed; (2) the testator named a beneficiary who stood in a relationship of confidence or dependence; and (3) the testator previously had expressed an intention to make a contrary disposition of the testators property.
In this case, the brother is not a beneficiary under either the will or the trust, and neither his entitlement to compensation as executor and trustee, nor his power as trustee to choose beneficiaries of certain trust property make him a beneficiary.
The uncertain and contingent possibility that the brother might divert and distribute trust property to himself does not make him a beneficiary.
A separate statute, Code 8.01-195.3(7), provides that the time for filing a notice of tort claim is tolled during the pendency of grievance procedures, which must be exhausted prior to commencing an action.
Nor is there merit in the argument that Code 18.2-268.3 lacks an objective definition of what constitutes a reasonable refusal under the statute. 12/14/2017 In proceedings by judgment creditors under writs of fieri facias, the circuit court erred in granting summary judgment to creditors seeking to reach the debtors interest in federal tax refunds where the debtors had not yet filed tax returns for the tax year in question.As of February 8, 2008 all opinions are Adobe Acrobat PDF documents.The Adobe Acrobat Viewer (free from Adobe) allows you to view and print PDF documents. Commonwealth (ORDER) 12/28/2017 In a Virginia Tort Claims Act case for injuries suffered while the plaintiff was an inmate at a correctional facility, it was error to dismiss the claim based on the one-year notice requirement of Code 8.01-195.6.The judgment refusing to probate this writing as a codicil to the decedents will is affirmed. Floor Care Specialists (Corrected) 12/07/2017 In a defamation action for which the claim arose after confirmation of the plaintiffs Chapter 13 bankruptcy plan, but prior to the bankruptcy discharge, and plaintiff did not disclose his defamation action until after the discharge, the circuit court did not err in applying the doctrine of judicial estoppel which prohibited plaintiff from prosecuting his defamation claim after taking the position in the bankruptcy court that it did not exist.Judicial estoppel is not an affirmative defense that is waived if not pled, thus it was not waived by the failure of the defamation defendants to raise it in their pleadings, and the circuit court had the authority to raise and apply the doctrine sua sponte.