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AMBROSIO V. WOLF: A Will Contest Cannot be Brought Until After the Testator has Died

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By Shannon Laymon-Pecoraro

In June 2012, Nancy D’Ambrosio (“Nancy”) suffered a stroke that resulted in a need for 24-hour care services. She subsequently executed a power of attorney naming her son, James, as agent. A year after executing the power of attorney, she signed a will (the “Will”) leaving everything to her two daughters, Jane and Electra, and shortly thereafter a medical power of attorney naming James as the agent.

Nancy’s daughters, as a result of their relationship with James, filed a petition to appoint a guardian and conservator for Nancy and to void the power of attorney. After numerous amended pleadings from both sides, a mutually agreed upon order was entered by the trial court that ultimately appointed a neutral third party as guardian and conservator of Nancy.

After Nancy’s death in 2015, the Will was probated and James filed a complaint to impeach the Will. Jane and Electra filed a responsive pleading to have James’s action dismissed, claiming, in short, that during the guardianship proceedings James not only asserted that Nancy had capacity during the time the Will was executed, but also that he could have asked the Will be invalidated at that time. The trial court found in favor of Jane and Electra. James appealed to the Supreme Court of Virginia.

One of the legal concepts addressed on appeal was claim preclusion, which essentially involves the inability to re-litigate claims that arise or could have arisen in an earlier suit. Jane and Electra contented that in the course of the guardianship proceeding, James could have challenged the Will, and by failing to do so, was barred from doing so now. James asserted that because the Will was not effective until the death of Nancy, he had no injury until her death and therefore no standing to make such a claim. The court agreed with James and found that because the Will was revocable until Nancy’s death, James had an expectation of what would occur, but that no cause of action could be brought prior to Nancy’s death.

As elder law attorneys, we often see demands made by family members to see the provisions of various estate planning documents. We also see family members who attempt to receive lifetime gifts via the attempt to enforce the provisions of a Will during the life of the maker. This case was an important reminder that a will is not effective until the maker of the will dies.

Kit KatAsk Kit Kat – Cockroach Ingenuity

Hook Law Center:  Kit Kat, what can you tell us about the ingenuity of cockroaches?

Kit Kat:  Well, these creatures have a few characteristics that might be useful for humans. The cockroach’s body and skeleton are amazing! Scientists have long been intrigued by their flexibility when colliding with objects like walls. How could they do this without, seemingly, losing any momentum? Normally, a cockroach can travel up to a speed of 3.4 miles per hour. Also, they are escape artists when pursued, as anyone knows who has encountered one. So Dr. Kaushik Jayaram, a biologist at Harvard University, decided to find out exactly why. He became the lead author of a study which was recently published in the Journal of the Royal Society Interface.

The questions Dr. Jayaram was seeking answers to revolved around the issue whether or not cockroaches were banging into things on purpose or whether there was strategy involved. So they filmed the actions of 18 male American cockroaches, and studied the results through viewing the film in slow-motion. What they found was that 80% of the time, the roaches were banging into things, with no-slowing when approaching an object. 20% of the time, they did seem to slow down to minimize impact. In both cases, they were surprised to learn that either strategy was just as  effective, with no negative consequence to the roach’s exoskeleton. In other words, their exoskeleton is so flexible, that it could withstand direct hits. It wasn’t necessary for think about what they were doing; just to keep moving.

Dr. Jayaram and his colleagues think that there are implications not necessarily for humans, but for robots which help us accomplish many tasks today. In the future, ‘small robots can be built with simple, robust, smart bodies to safely bump into obstacles instead of using complex and expensive sensing and control systems.’ Who knew that the lowly cockroach could tell us so much!

(Douglas Quenqua, “How Cockroaches Crash Into Walls and Keep Going,” The New York Times (Trilobites section), Feb. 13, 2018)

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Posted on Tuesday, February 27th, 2018. Filed under Senior Law News.
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