When completing their estate plan, most people who leave one child more than the others already know it might cause trouble. An experienced estate planning attorney can help document the reasons behind these decisions and reduce the risk of future disputes. They do it anyway, usually for a good reason, and they hope the family will understand.
As of July 1, 2026, hoping that the family will understand may not be enough to ensure their wishes are honored. Virginia has changed the law that governs how the courts must evaluate a dispute involving whether the maker of a trust was improperly influenced in dividing his or her assets.
Under new Virginia Code section 64.2-724.1, once someone challenging your trust establishes a few specific facts, the court must presume that you were unduly influenced, meaning pressured into signing. The person defending your trust, often the very child you were trying to help, now has to prove you meant what the document says.
That is a change in who loses a close case. And close cases are what contested inheritances look like.
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What Actually Changed on July 1
Senate Bill 540, introduced by Senator Mark Obenshain, passed the Senate 39 to 0 and the House 67 to 30 and became Chapter 506 of the 2026 Acts of Assembly.
Under the old rule, once the family defending the trust offered evidence that the settlor, the person who created the trust, had acted freely, the presumption of undue influence “disappear[ed] like a bursting bubble.” The challenger was back where he started, carrying the whole case.
Now the presumption is a weight. The statute says the finder of fact “shall presume that the undue influence was exerted” unless, on all the evidence at trial, it finds the decedent did intend the property to pass as the contested document says. The presumption no longer pops. Somebody has to answer it.
Virginia did something parallel for wills back in 2022, in Va. Code Section 64.2-454.1. The wording is not identical, but the direction is the same. For four years, a court hearing a combined will-and-trust contest could be instructing a jury on two different standards for the same conduct. That gap is now closed.
The Three Facts That Trigger the Presumption
The presumption of undue influence is not automatic. A challenger has to establish three things:
- You were of advanced age when you signed the trust or the amendment.
- A beneficiary stood in a relationship of confidence or dependence with you, meaning you relied on that person.
- You had previously expressed an intention to leave the property differently.
Read those again with a real family in mind. An 84-year-old signs an amendment. The daughter who moved home and took over the checkbook receives a larger share. And there is an older will pointing toward equal shares.
That is not a scheme. That is the most common arrangement in American families. It is also, as of July 1, the fact pattern most likely to hand a disappointed sibling a presumption.
Why the Caregiving Child Is Now the Most Exposed
Diane is 84 and lives in Virginia Beach. After a mild stroke, her daughter Karen moved down from Chesapeake, handled the bills, and managed the medications. Two years later Diane restated her revocable trust to leave Karen sixty percent and her two out-of-state sons twenty percent each. Her reasoning was simple and, frankly, fair. Karen gave up income to be there.
If Diane had died in June 2026, her sons carried the whole burden. Karen’s testimony that her mother was sharp and decisive would probably have ended it.
If Diane dies this October and her sons file in Virginia Beach Circuit Court, the arithmetic reverses. Establish the three facts and Karen is the one explaining herself, with the presumption running against her.
Nothing about Diane’s intentions changed. Only the evidence rules did. Which moves the work of protecting her decision from the courthouse to the drafting table.
Does This New Rule Affect a Trust I Already Signed?
Probably, and this is the part worth pausing on.
The statute is written about actions contesting validity, not about the act of signing, and the bill contains no language limiting it to trusts executed on or after July 1. So a contest filed next year over a trust signed in 2019 will likely be decided under the new rule.
Likely, not certainly. Virginia has a general presumption against applying new statutes retroactively, and no court has ruled on this one yet. Plan as though it applies, because the cost of guessing wrong runs in only one direction.
One question is genuinely open. The statute does not say how convincingly the defender must prove intent. No appellate court has answered it, and four years after the parallel will statute there is still no reported guidance. It is safer to assume that the defender of the trust has real work to do.
What Actually Protects a Trust Now
The defense against a presumption is a record made the day you sign, not a theory assembled after a funeral. Five things now belong in every file where the shares are unequal.
- An independent meeting. You meet with your attorney alone. No caregiving child in the room, on the phone, or waiting in the lobby. That single fact does more against a confidential-relationship argument than any clause we could draft.
- A capacity note dated near signing. A short letter from your physician, or detailed attorney notes recording that you knew what you owned, who your children were, and who you were favoring.
- A written statement of reasons, in your own words. Juries respond to a mother explaining herself in her own voice. They discount a lawyer explaining it for her.
- A no-contest clause. Virginia enforces these where the forfeiture language is unmistakable and construes them strictly against forfeiture where it is not.
- Separated roles. Where a caregiving child receives more, consider an independent trustee, so the same person is not both the largest beneficiary and the one holding the checkbook.
Why This Is Not Only a Legal Problem
A contested trust does more than run up legal fees. It freezes the plan. Distributions stall. A rental property or a business sits in limbo while a trustee refuses to act without cover. The estate misses the window on tax elections that had to be made in a particular year.
Litigation can turn a well-built plan into a tax problem, which is why working with a litigation attorney can help prevent delays when nobody could move money for two years.
That is the argument for having the legal, tax, and investment sides of your plan talking to each other. The lawyer documents intent and capacity. The tax advisor checks that the structure still works if a distribution is delayed eighteen months. The wealth team makes sure there is liquidity to pay the estate’s obligations without a forced sale. Each of those done alone leaves a seam, and Virginia just made seams more expensive.
If your trust leaves unequal shares, names a caregiving child as trustee, or was last amended during a stretch of declining health, this is a good fall to have it reviewed. Let’s talk. Schedule a consultation with our Hampton Roads estate planning team and we will tell you honestly whether your plan holds up or needs work.