Volume 52 | University of Richmond Law Review

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.

* Partner, McGuireWoods LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.

** Partner, Virginia Estate & Trust Law PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

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.

* General Counsel, Virginia529. J.D., 1993, University of Richmond School of Law; B.A., 1985, Hampden-Sydney College.

** Associate Counsel, Virginia529. J.D., 2008, University of Richmond School of Law; B.S., 2000, James Madison University.

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.

* Clinical Professor of Law and Director of the Jeanette Family Law Clinic, University of Richmond School of Law, Richmond, Virginia. J.D., 2004, Columbia Law School; B.A., 1999, Stanford University. The author would like to thank Mark Branca and Jenni Lyman for their invaluable research assistance. The author has practiced domestic relations and child welfare law for over fourteen years in trial courts in Virginia and New York. Upon graduation, Professor Cecka was selected as a Skadden Fellow at the Legal Aid Society, representing children in foster care in all five boroughs of New York City, and later, as a Teaching Fellow and the Director of the Child Advocacy Clinic at St. John’s School of Law which serves Queens and Long Island. In 2008, Professor Cecka was appointed by the University of Richmond School of Law to create and launch the Family Law Clinic, which was the first, and still only, pro bono service for litigants in central Virginia on contested domestic relations matters. Under Professor Cecka’s supervision, third-year law students try cases in the Juvenile and Domestic Relations Courts and the Circuit Courts of Richmond, Henrico, Chesterfield, Petersburg, and Hanover. Professor Cecka is also Of Counsel in domestic relations matters to the law firm Winslow and McCurry in Chesterfield, Virginia, and has made appearances in Clarke and York Counties in that capacity.

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.

* Underwriting Counsel, Old Republic Title Insurance Company. J.D., 1983, University of Richmond School of Law; Virginia State Bar, Real Property Section, Board of Governors, Treasurer. Since 2013, Mr. Wiley has assisted in course instruction on real estate transactions and financing at the University of Richmond School of Law.

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.

* J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2015, Virginia Polytechnic Institute and State University. I would like to extend a special thank you to Professor John Douglass for his invaluable feedback and guidance throughout the writing process. I would also like to thank Callaghan Guy for her helpful suggestions and support. Finally, I wish to express my gratitude to the staff and editorial board of the University of Richmond Law Review for their help in preparing this comment for publication.

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.

* J.D. Candidate, 2018, University of Richmond School of Law. B.S., 2015, George Washington University. I would like to extend a special thank you to Professor W. Hamilton Bryson for his invaluable guidance and support throughout the duration of this project. I also wish to thank the members of the University of Richmond Law Review for their time and effort preparing this comment for publication.

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