Comments Document

Please see attached letter re: my requests regarding SB 514. Thank you.

Dear Mr. Chairman and Committee Members, My name is Yolanda Bell. I am a Veteran who resides in Manassas and am a constituent of Senator Jeremy McPike. I come from a family of veterans and first responders. I have been fighting for and testifying in favor of guardianship reform for the last three years, after my only sister was horribly neglected, abused, and killed by her guardians in November 2017. You have heard my sisters story and seen what was done to her so know this bill is gravely needed. Week before last after passing unanimously out of COJ three (3) very important guardianship bills (HB643, HB1207, HB1260) were killed in appropriations committee for purely for partisan reasons. This is both a tragedy and unacceptable. Life, health, and safety of the vulnerable is not a partisan issue. It is a moral and human issue. God has commanded us to take care of the least of these, to care for the widow and the stranger, to care for and protect those who cannot protect themselves. Killing those bills made these individuals less safe. The Courts of Justice Committee has a second chance to protect these vulnerable wards by unanimously voting to report Senator McPikes bill SB514 during cross-over. People are being irreparable harmed and are dying. Please unanimously vote to report this bill. Thank you for your time and attention. Sincerely, Yolanda Bell

Dear Mr. Chairman and Committee Members, My name is Yolanda Bell. I am a Veteran who resides in Manassas and am a constituent of Senator Jeremy McPike.  I come from a family of veterans and first responders. I have been fighting for and testifying in favor of guardianship reform for the last three years, after my only sister was horribly neglected, abused, and killed by her guardians in November 2017. You have heard my sisters story and seen what was done to her so know this bill is gravely needed.  Week before last after passing unanimously out of COJ three (3) very important guardianship bills (HB643, HB1207, HB1260) were killed in appropriations committee for purely for partisan reasons. This is both a tragedy and unacceptable. Life, health, and safety of the vulnerable is not a partisan issue. It is a moral and human issue. God has commanded us to take care of the least of these, to care for the widow and the stranger, to care for and protect those who cannot protect themselves. Killing those bills made these individuals less safe. The Courts of Justice Committee has a second chance to protect these vulnerable wards by unanimously voting to report Senator McPikes bill SB514 during cross-over. People are being irreparable harmed and are dying. Please unanimously vote to report this bill. Thank you for your time and attention. Sincerely, Yolanda Bell

Mr. Chairman and Committee Members: I am a lawyer in Roanoke. I have been practicing 42 years. I have handled dozens of will contest cases over the years, representing both proponents and contestants of a will. Senate bill 554 provides a needed change in the proof required in undue influence cases. As a person ages, they become weaker in body and mind. They are vulnerable to both lawful and unlawful persuasion. They become heavily dependent on those who are providing services and companionship to them. All to often, there is someone in this position who seeks to take advantage. There is a reason telemarketers target the elderly! A 2018 Virginia Supreme Court case, Parson v. Miller, has made it next to impossible to prevail on an undue influence claim. This case, building on a 2012 case (Weedon v. Weedon) holds that when a presumption of undue influence arises, virtually any evidence in support of the contested will destroys the presumption. There is always some evidence in support of a will--this means a challenge to a will must fail, even in an obviously meritorious case. Senate bill 554 is quite modest in one respect. It simply returns the law to where it was before 2012. It effectively overrules Parson v. Miller and Weedon v. Weedon. Before Weedon and Parson, courts in Virginia would typically submit a case to a jury if the facts justified the presumption of undue influence. The trial court still would instruct the jury that the contestant had the burden to show undue influence by clear and convincing evidence. The trial court also would instruct the jury that the evidence must show that the contested will was not the true will of the decedent. That is, that the decedent's will has been overborne. These are heavy burdens--as they should be. Senate bill 554 does not change this law. Ultimately, it will be the jury's call, based on all the evidence, whether the contestant has proven undue influence. A presumption will permit a jury verdict; it does not require it. It has been my experience that juries are remarkably good at coming to the right decision. Undue influence always happens behind closed doors. Without an effective presumption, the elderly will be to easy a target for the greedy and the unscrupulous. I think the VBA Trusts and Estates section and the Academy of Elder Lawyers overstate the possible adverse consequences of this legislation. Senate bill 554 simply puts us back where the law was for decades. There was no flood of undue influence litigation before. Fears that a valid will would not stand are unfounded. It didn't happen before 2012, why would it happen now? For these reasons, I ask that you vote in favor of Senate bill 554. William Hopkins, Jr.

On behalf of the Virginia Academy of Elder Law Attorneys, I am writing to oppose SB 554. While the patron’s stated aim of reducing elder financial exploitation is laudable and is one that is of concern to us as well, this particular bill as written would have unintended consequences that could be devastating for families. // First of all, we must remember that Virginia has a very long history of deferring to the wishes of testators as stated in their wills. As detailed in the Weedon case in 2012 and the Parson case in 2018(and also in earlier cases than these), burdens of production may shift but the burden of proof in a will contest lays squarely “upon him who alleges fraud.” (i.e. the contestant of the will). As written, this bill would make it relatively easy for one to create the presumption of undue influence and place the proponent of a will in the position of then having to prove a negative – an almost impossible burden. This outcome would make it easier for estranged relatives and others to engage in nuisance litigation, something which almost always operates to the financial detriment of the estate.// In addition, it is very common for elderly persons to enter into agreements with their children whereby one or two of the children take on the full-time care of the parent in return for a disproportionate share of whatever estate may be left. If children caring for their parents under such arrangements are to be viewed with suspicion, fewer will be willing to do so. This is likely to result in more elderly residents ending up in nursing homes on Medicaid, an expense which will be borne by the taxpayers of the Commonwealth.// Lastly, and most importantly, we must remember that it is very common for people to change their estate plans as their life circumstances change. Passage of this bill will undermine the security of estate plans created by the elderly. As elder law attorneys, we see the broad spectrum of client situations. For every situation involving possible undue influence, we see dozens more where families are simply trying to plan for long-term care and to do the right thing. These families would be impacted by this bill as well. Our clients frequently want to ensure that their wishes will be followed and that their estates will not be lost to litigation. If SB 554 becomes law, it will become more difficult to honor the wishes of older testators and we therefore ask that this bill be passed by indefinitely.

I encourage you to support the passage of SB554, a bill which will have the effect of normalizing the law with regard to will contests on grounds of undue influence, and returning the law to the status quo that existed before the opinion in Parson v. Miller, 296 Va. 509 (2018). Prior to Parson, when a caretaker for a vulnerable individual obtained a will under which he or she received the individual’s property, a presumption arose that the will had been obtained by undue influence. This presumption shifted the burden of proof to the caretaker to show that the will had been fairly obtained. Under current law, the presumption arises, but disappears if the caretaker offers any evidence--including simply his or her own testimony--to rebut it. The individual attacking the will is left with the burden of proving undue influence by clear and convincing evidence. I devote close to 100% of my practice to estate litigation. I can confidently state two things: First, victimization of elderly Virginians and misconduct involving estates are at epidemic levels and, second, the Parson opinion makes it nearly impossible to challenge a will on grounds of undue influence. Given that the other ground to challenge a will, lack of testamentary capacity, almost never exists, this means that property is being stolen from rightful heirs every day, and there is virtually nothing we can do about it. Without a presumption, the only way to challenge a will on grounds of undue influence is to offer clear and convincing proof in the form of eyewitness testimony. This is impossible to come by. Those bent on stealing estates do not do it in the open, and often work their plans over months or years. A ruling that the presumption disappears is equivalent to a ruling that no person can be convicted of a crime without eyewitness testimony. I have heard it argued that restoring the effect of the presumption will “open the flood gates” for will contests, and will lead to the setting aside of legitimate wills because they happen to favor a person close to the testator. This is not true. The flood gates were not open prior to Parson. And, I have yet to see a will set aside because a shift in the burden of proof tied the hands of an innocent beneficiary. If a beneficiary had a genuine relationship with a testator and deserves to inherit an estate, it is an easy matter to demonstrate this. There will be a history of friendship between the two. There will be witnesses to it. It will be seen that the will was created in the open after consultation with an attorney, and signed before competent, neutral witnesses. The only beneficiaries who will suffer from a shift in the burden of proof are those who cannot point to any reason for the testator’s generosity, and who seek to rely on wills printed off the internet, signed in hospital rooms before questionable witnesses, and hidden away until the testator died. I could relate scores of stories that support what I am saying. I met yesterday with clients who are faced with a one-paragraph, hand-drawn will allegedly found in the trunk of a car which leaves over a million dollars of their uncle’s real estate to a man who mowed his grass. I will get other calls like this before the week is over. Please support Senator Obenshain’s bill, and restore the ability of Virginia attorneys to protect the legitimate beneficiaries of estates. Sincerely, Travis J. Graham, Esq.

As an elder law attorney, I write a LOT of Wills. And Powers of Attorney. The subject of SB554 – Undue Influence - is very much a part my consideration when meeting with my clients, especially for the first time. It is my view that “sussing out” the possibility undue influence upon my clients is my job. And to prevent it at the front end. I often go to extraordinary lengths to do so. I am not a litigator. My job is to facilitate the client’s wishes and avoid any difficulties or expenses associated with the transfer of their property to their intended beneficiaries. That is, to prevent unnecessary, expensive and wasteful probate administration and litigation. Such litigation does nothing but dissipate the testator’s estate. Frequently the only “winners” are the attorneys representing the parties in conflict. My clients – mostly everyday folks of modest means – can ill afford to litigate such matters. Because I am an elder law attorney, I very often see this situation: My client, elderly, infirm and failing, has decided to favor a particular child who has been heavily engaged in taking care of them. Adult children who enter into such an understanding often give up their own careers to stay home and take care of mom or dad until they die. They might give up, or delay marriage and having children of their own. All with the understanding that someday, the family home will be theirs in exchange for their devotion. SB554 serves to further undermine this time-honored tradition. By shifting the burden of proof to the adult child – often caregiver – the beneficiary alleged to have exerted “undue influence” is forced to prove a negative. That is, that “undue influence” did NOT occur. This is akin to – in criminal process – forcing one to prove their innocence rather than the presumption of it. There is an unintended fiscal consequence that is very likely to occur should SB554 be enacted. If the burden of proof is shifted, caregiver child is far less likely to take on the burden of caring for mom or dad in the family home. That means that those assets that would otherwise allow for mom or dad to be cared for where 99.9% of the elderly wish to remain - will be forced into nursing homes instead. Given the cost of nursing home care, the end result is that the Commonwealth – through Medicaid – is now going to pay for their care. Yes. The taxpayers will now bear the burden of paying for care at a very steep price, rather than the devoted family member who would otherwise happily take on the job in exchange for the family homeplace. I believe the purported prevention of undue influence provided for in this bill is vastly outweighed by the deleterious effects on our elderly and their families AND the taxpayers. I also believe there are other, far more effective and constructive ways we might protect our vulnerable elderly from abuse and financial exploitation. I do hope this subcommittee will recognize the weakness of this bill and vote against its enactment.

The elimination of subsection G is of grave concern for localities which are required to manage their right of way. The proposed bill constrains the locality's ability to freely exercise the police power to make safety changes. Simply putting up a “no-left turn” sign in the right of way in the proximity of a business entrance would now give rise to an inverse taking claim for damage to property and lost profits. Most government budgets cannot afford to add acquisition/damage/litigation expenses to routine safety improvements. The exercise of eminent domain should be a threshold requirement for any lost profits or lost access claims. Landowners are already protected from impacts for temporary road closures by the requirement that reasonable access be maintained.

VOTE YES FOR THIS BILL. Presently, all states which share borders with Virginia, have strict laws against selling catalytic converters to metal dealers. These laws also prohibit catalytic converters from being possessed by citizens, except under certain conditions. Accordingly, scrap metal dealers purchase catalytic converters from people to extract the 3 "platinum group metals". Each day in the Richmond metropolitan area, at least 6 are reported stolen. The victims of these thefts spend more than $1,000 to repair the damage to the vehicle and to replace the converter. If we hold the dealers accountable, then the thieves will not be as likely to steal catalytic converters. This bill is a first step.