Wills, Trusts, And Estates

J. William Gray, Jr.
Katherine E. Ramsey

The Supreme Court of Virginia has handed down seven recent decisions addressing the authority of an agent to change the principal’s estate plan, legal malpractice claims in estate planning, rights of incapacitated adults, limits of the constructive trust doctrine, effects of a reversionary clause in a deed, ownership of an engagement ring, and proof of undue influence. The 2017 Virginia General Assembly clarified rules on legal malpractice and tenancies by the entireties, adopted the Uniform Trust Decanting Act and the Uniform Fiduciary Access to Digital Assets Act, and expanded provisions governing estate administration, life insurance, and advance medical directives. Other legislation affecting wills, trusts, and estates included clarifications and technical corrections relating to augmented estate claims, non-exoneration of encumbered property, administration procedures, life insurance, adult financial exploitation, death certificate amendments, and spousal exemptions from real estate tax.

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A Primer On ABLE Accounts

Christopher T. McGee
G. Alisa Ferguson

It has been called the most significant piece of legislation benefiting individuals with disabilities since the 1990 passage of the Americans with Disabilities Act. The Stephen Beck Jr., Achieving a Better Life Experience (“ABLE”) Act created a tax-advantaged savings account for individuals with eligible disabilities that permits, for the first time, these individuals and their families to save for their daily and future expenses in meaningful amounts without affecting their eligibility for Supplemental Security Income, Medicaid, and other public benefits. The ABLE Act is local in its origins and its passage in December 2014 was profoundly bittersweet.

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Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned

Dale Margolin Cecka

The appellate courts of this Commonwealth are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error.

These words of Judge Humphreys, denying a 2016 child custody appeal, are cogent. Yet four months later, in another appeal, Judge Humphreys joined a unanimous decision overturning a common provision in a custody order. In Bonhotel v. Watts, the Court of Appeals of Virginia held that judges cannot delegate judicial decision making power in child custody cases to outside professionals. This sounds obvious, but such delegation is actually ordered all the time. In final orders, Virginia’s trial court judges frequently give discretion to guardians ad litem (“GALs”), as well as therapeutic counselors, to determine issues such as the frequency, length, and substance of parent-child visitation.

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The Evolution Of E-Commerce In Virginia Real Property Transactions

Ronald D. Wiley, Jr.

The General Assembly amended section 17.1-258.3:1 of the Virginia Code in 2017 to provide that “[a]ny clerk of a circuit court with an electronic filing system established in accordance with this section may charge a fee not to exceed $5 per instrument for every land record filed by paper.” The amendment also deleted the five-dollar fee that Code section previously authorized for electronic recordation of any instrument. The obvious purpose of the amendment is to encourage electronic filing of land records where possible.

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COMMENT: A Step Toward Robust Criminal Discovery Reform In Virginia: The Disclosure Of Witness Statements Before Trial

Jennifer Horan

Calls for reform to the Virginia criminal discovery rules have been occurring for over a decade. Those calling for reform were optimistic after the Supreme Court of Virginia put together a special committee to propose new reforms to the current criminal discovery rules. The Special Committee on the Criminal Discovery Rules (“Special Committee”) spent nearly a year debating new proposed rules for criminal discovery and presented their final report to the Supreme Court of Virginia on December 2, 2014. However, on November 13, 2015, the Supreme Court of Virginia declined to adopt the changes proposed by the Special Committee in a short, two-sentence order.

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COMMENT: Howell v. McAuliffe

L. Michael Berman

In the summer of 2016, the Supreme Court of Virginia decided Howell v. McAuliffe. The case made national headlines as it was in response to Governor Terry McAuliffe’s attempt to restore the voting rights of more than 206,000 convicted felons. Among the petitioners in the case was the Speaker of the Virginia House of Delegates, William J. Howell; Majority Leader of the Virginia Senate, Thomas Norent, Jr.; as well as four other registered voters. The petitioners sought an injunction to prevent the Governor from granting pardons on a “blanket” basis. The court ordered the injunction and issued a writ of mandamus instructing precisely how the McAuliffe Administration was to rescind the recently restored voting rights, as well as how to proceed with restorations in the future.

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You Could Have Told Me That in the First Place: Five Tips that Might Have Saved a Young Lawyer a Lot of Trouble

Jay O’Keeffe

I will open with a confession: I have very, very little to contribute to legal scholarship. My day-to-day work as a lawyer and a parent keeps me busy. My career to date as a generalist has not led me to develop any great substantive expertise in a particular area of the law. Even my war stories are boring because they cluster around briefs, procedural defaults, and oral arguments.

But I do have one thing to offer. I have been lucky in my career to work in “Biglaw,” then at a medium-sized firm of about fifty lawyers, and most recently at a small firm of just three lawyers. I made my share of mistakes at each stop—some routine, some painful, and almost all avoidable. For the most part, I have been paying attention along the way. And so what I have to share with you is a set of five tips, in no particular order, that could have prevented about eighty percent of my missteps as a young lawyer.

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Judge Merhige’s Environmental Decisions: Expert Handling of Groundbreaking Environmental Rulings and Complex Federal Jurisdictional Questions

Jim Vines

It is a special privilege for me to contribute to this edition of the University of Richmond Law Review honoring Judge Robert R. Merhige, Jr. Here, I seek to highlight his contributions to United States environmental law. In 1988 and 1989, I was one of two recent law school graduates who clerked for Judge Merhige (“please call me by my first name; it’s ‘Judge’”). The Judge was a larger than life figure. As a federal trial judge, historically important and intellectually challenging cases seemed to find their way into his court in a volume not matched in many other federal district courts. Not surprisingly, his environmental cases were “big” and his rulings reflected his uncommon grasp of the whole of the law.

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The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation

Robert A. Pratt

The United States Supreme Court’s 1954 landmark decision in Brown v. Board of Education declared that segregation in public education violated the Fourteenth Amendment to the United States Constitution. For the millions of African Americans who had endured decades of separate and unequal schooling, this decision was a resounding reaffirmation of the nation’s commitment to equal justice under the law. But those who expected segregated schools to end overnight were in for a rude awakening. The National Association for the Advancement of Colored People (“NAACP”), which had led the legal assault against segregation since its founding in 1909, was encouraged by the Court’s ruling. But its attorneys would soon realize that their initial optimism had been premature and that they had greatly underestimated white southern resistance. Perhaps few could have predicted that it would take nearly twenty years before school desegregation would begin in earnest in the states of the former Confederacy—and only then because of the determined actions of a few courageous judges willing to place principle above prejudice. Judge Robert R. Merhige, Jr., of Virginia was one of them.

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The Honorable Robert R. Merhige, Jr.: A Judge Ahead of His Time

Wayne A. Logan

When one thinks about it, it is really quite incredible: a Brooklyn-born son of Lebanese and Irish immigrants with a distinct New York accent, standing well under six feet tall, attends a small North Carolina college on a basketball scholarship; serves with distinction in a bombing squadron in World War II; graduates from the University of Richmond School of Law (paying his way by serving as a night librarian); excels at the practice of law in a city (Richmond) not renowned for its receptivity to Yankees; wins election as president of the city’s Bar; and upon being appointed to the federal bench, serves with distinction for thirty-one years, addressing some of the most controversial legal issues of his time with a skill, energy, and workhorse determination unknown to most mortals.

During his time on the bench, of course, Judge Robert R. Merhige, Jr., (“The Judge” to his clerks and extended court family) came to enjoy considerable national renown, not only for being a progenitor of the Eastern District of Virginia’s “rocket docket” and his expeditious resolution of cases when sitting on assignment, but also for landmark litigation, including the antitrust case involving Westinghouse uranium price-fixing litigation, the Dalkon Shield settlement, and events such as the Wounded Knee uprising, Watergate, the Klan/‌Nazi-Communist Party violence in Greensboro, North Carolina, and the desegregation of Virginia’s public schools.

Here, however, I would like to address a perhaps lesser-known and lower-profile aspect of the Judge’s illustrious tenure on the bench: his criminal case docket.

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