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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 37021
Experience:  Texas lawyer for 30 years in Estate law
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What is a code and parameters under which I could contest a

Customer Question

What is a Virginia code and parameters under which I could contest a will 2 years after probate? I am the daughter and had a brother who coerced my mother to sign a will disinheriting me and I was unaware as I was out of state.
Submitted: 4 months ago.
Category: Estate Law
Expert:  RobertJDFL replied 4 months ago.

Thank you for using Just Answer. I look forward to assisting you.

The common grounds upon which a will is contested include:

The lack of the decedent's mental capacity at the time the will was made.

The failure to follow the requirements for properly making or executing the will under Virginia law.

Undue influence by a person who held a position of trust and confidence with the decedent, and using this position to unduly influence the decedent regarding the provisions of their will.

The use of duress, or other means to force the decedent to include provisions in their will that they otherwise would not have included.

Where the will is the result of fraud.

It sounds like from what you describe you believe that your family member may have used undue influence or duress to coerce your mother into writing her will -hence that would be the grounds upon which to challenge. A challenge to a will may be brought within one year from when the court enters an Order admitting the will the probate, after which suit would be barred by the statute of limitations, unfortunately. That can be found in the Virginia probate code here.

Did you need clarification or additional information about my answer? If so, please reply, I'm happy to assist further. Otherwise, please remember to leave a positive rating for me by clicking on the stars,as experts are not employees of this site and we are only paid if you leave a positive rating. Thank you!

Customer: replied 4 months ago.
Robert I would prefer a Virginia expert unless you have specifically studied Virginia code. Your response was "A challenge to a will may be brought within one year from when the court enters an Order admitting the will the probate, after which suit would be barred by the statute of limitations, unfortunately."
Yet a local attorney friend did give an indication of grounds that could be possible within a 2 YEAR time from the date the will was probated (July 15, 2014) which I would like to confirm formally. I was not notified so I would not have known.
Customer: replied 4 months ago.
Perhaps opt out?
Expert:  RayAnswers replied 4 months ago.

Ray a new expert here to try to help you.

Here is Virginia law and the exception you referenced..

In Virginia you can contest a will from six months after the date the will is accepted via court order but before the one year anniversary of the date of the order accepting the will. There is an exception if the contest is based on fraud or undue influence, this statute of limitations is two years from the date of the order. The extension is allowed because the contesting party may not know of the fraud or undue influence immediately. The time tolls from the date that "you knew or reasonably should have known" about the incident and filed a lawsuit.

Expert:  RayAnswers replied 4 months ago.
Customer: replied 4 months ago.
What code section covers the exception you stated? There is an exception if the contest is based on fraud or undue influence, this statute of limitations is two years from the date of the order. The extension is allowed because the contesting party may not know of the fraud or undue influence immediately. The time tolls from the date that "you knew or reasonably should have known" about the incident and filed a lawsuit.
I may want to talk with you later after I go to the assisted living center where she passed to ask about medical records. I have one foot out the door.
Please will you send the code first? Also how does Virginia define (in this arena) "fraud". Also, "undue influence"?
Expert:  RayAnswers replied 4 months ago.

§ 64.2-448. Complaint to impeach or establish a will; limitation of action; venue.

A. A person interested in the probate of the will who has not otherwise been before the court or clerk in a proceeding to probate the will pursuant to § 64.2-444 or in an ex parte proceeding to probate the will pursuant to subsection B of § 64.2-446 may file a complaint to impeach or establish the will within one year from the date of the order entered by the court in exercise of its original jurisdiction or after an appeal of an order entered by the clerk, or, if no appeal from an order entered by the clerk is taken, from the date of the order entered by the clerk.

B. A person interested in the probate of the will who had been proceeded against by an order of publication pursuant to subsection B of § 64.2-449 may file a complaint to impeach or establish the will within two years from the date of the order entered by the court in the exercise of its original jurisdiction, unless he actually appeared as a party or had been personally served with a summons to appear.

C. A person interested in the probate of the will who has not otherwise been before the court and who was a minor at the time of the order pursuant to § 64.2-444 or 64.2-446 may file a complaint to impeach or establish the will within one year after such person reaches the age of maturity or is judicially declared emancipated.

D. A person interested in the probate of the will who has not otherwise been before the court and who was incapacitated at the time of the order pursuant to § 64.2-444 or 64.2-446 may file a complaint to impeach or establish the will within one year after such person is restored to capacity.

E. Upon the filing of a complaint to impeach or establish the will pursuant to this section, the court shall order a trial by jury to ascertain whether what was offered for probate is the will of the testator. The court may require all testamentary papers of the testator be produced and direct the jury to ascertain whether any paper produced is the will of the testator. The court shall decide whether to admit the will to probate.

F. The venue for filing a complaint to impeach or establish the will shall be as specified in subdivision 7 of § 8.01-261.

G. Subject to the provisions of § 8.01-428, a final order determining whether to admit a will to probate bars any subsequent complaint to impeach or establish a will.

Code 1950, §§ 64-80, 64-84 through 64-86; 1968, c. 656, §§ 64.1-84, 64.1-88 through 64.1-90; 1972, c. 825; 1977, c. 624; 1996, c. 58; 2012, c. 614.

Expert:  RayAnswers replied 4 months ago.

B. A person interested in the probate of the will who had been proceeded against by an order of publication pursuant to subsection B of § 64.2-449 may file a complaint to impeach or establish the will within two years from the date of the order entered by the court in the exercise of its original jurisdiction, unless he actually appeared as a party or had been personally served with a summons to appear.

You could challenge under the 2 year section above claiming fraud or undue influence and you could not have reasonably known during the one year period.

Thanks again.

Expert:  RayAnswers replied 4 months ago.

Fraud here is civil fraud where a party may not know that there was a will or probate for over a year and the facts that show there was deception or a lack of transparency--the relative may have unduly caused the deceased to alter their will or execute a new one and thus challengeable.

Expert:  RayAnswers replied 4 months ago.

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