2013 VIRGINIA GENERAL ASSEMBLY SESSION

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1 2013 VIRGINIA GENERAL ASSEMBLY SESSION Legislation Sponsored by The Virginia Bar Association Boyd-Graves Conference Family Law Coalition Commission on the Needs of Children I. THE VIRGINIA BAR ASSOCIATION A. Wills, Trusts & Estates Section 1. Rule Against Perpetuities. This bill corrects errors in the rule allowing a settlor of a trust to opt out of the Uniform Statutory Rule Against Perpetuities. First, under current law, the opt-out rule is part of a Code section that applies to nondonative transfers. Moving the opt-out rule to the Code section for exclusions to the Uniform Rule makes it clear that the opt-out rule applies to donative transfers. Second, the bill clarifies that an interest in a corporation, partnership, limited liability company, business trust, or similar entity that invests in real estate is not an interest in real property. Third, the bill clarifies that those portions of a trust that consist of personal property remain exempt from the Uniform Rule if there is an opt-out provision in the trust, even if the trustee acquires a real property interest. The bill is declarative of existing law. SB 756 (Edwards) 2. No-Contest Clauses. This bill allows a beneficiary of a will or trust to institute an action without triggering the penalties of a no-contest clause under certain circumstances, such as interpreting provisions or actions under the will or trust. SB 757 (Edwards) 3. Uniform Trust Code; Interested Trustees Subject To Ascertainable Standard. This bill expands the rule in the Uniform Trust Code that subjects an interested trustee to an ascertainable standard to include a person who is deemed to US_ACTIVE

2 have any power of a trustee, whether because such person has the right to remove or replace any trustee, because a reciprocal trust or power doctrine applies, or for any other reason. SB 758 (Edwards) 4. Guardianship And Conservatorship. This bill makes various changes to the guardianship and conservatorship statutes, including: (i) permitting another person to initiate a guardianship proceeding before an incapacitated child turns 18 if there is no living parent; (ii) requiring a petition to state the basis for the court's jurisdiction; (iii) clarifying the court's ability to award reasonable fees for a guardian ad litem and counsel for the respondent; (iv) requiring the court to hold a hearing on the appointment of a guardian or conservator within 120 days from filing; (v) confirming that the court should consider the respondent's best interests when determining the need for a guardian or conservator; (vi) granting a conservator the power to make elections for a family allowance, exempt property allowance, and homestead allowance; and (viii) granting a court the ability to authorize a conservator, for good cause shown, to create and fund a trust for an incapacitated person. SBS 759 (Edwards) 5. Pre-Death Proof Of Wills And Trusts. This bill allows a testator or settlor to petition the court during such testator s or settlor s lifetime to determine the validity of the will or revocable trust. The bill requires that notice of the proceeding be given to all interested persons and provides that the court order proving the will or revocable trust is binding after the testator's or settlor's death. SB 760 (Edwards) 6. Attorney-Client Privilege for Virginia Fiduciaries. This bill provides for the common law attorney-client privilege to be extended to fiduciaries when they are seeking advice from counsel. This bill specifies that only the person acting as a fiduciary is considered the client of the attorney for the purposes of this privilege. SB 761 (Edwards) - 2 -

3 7. Exhumation Orders. This bill requires that a party petitioning a court to order the exhumation of the body of any dead person provide a sworn statement setting forth facts establishing a reasonable possibility of (i) the requisite sexual conduct between the petitioner's alleged ancestors or (ii) a biological relationship between the petitioner and his alleged ancestors. SB 916 (Stuart) B. Real Estate Section 1. Recording Deeds; Statement Of Preparation. This bill clarifies that the requirement that the first page of a deed state that it was prepared either by the owner of the property or by an attorney licensed to practice in Virginia does not apply to deeds of trust. HB 1507 (Lewis) C. Business Law Section 1. Limited Liability Companies; Assignment Of Interest. This bill amends the Virginia Limited Liability Company Act to permit the assignee of an interest in a limited liability company to participate in the management and affairs of the limited liability company, become a member of the limited liability company, receive distributions, and have other rights, if provided in the articles of organization or an operating agreement. The measure overturns the Virginia Supreme Court's finding in Ott v. Monroe that current law precludes such rights being transferred to an assignee. SB 779 (Watkins) D. Law Practice Management Division 1. State Corporation Commission; Pro Bono Legal Services. This bill authorizes members of the State Corporation Commission and its subordinates and employees to engage in the private practice of law on a pro bono public basis with the Commission's approval. Currently, all private practice of law by such persons is prohibited. SB 778 (Watkins) - 3 -

4 E. Criminal Law Section 1. Writ Of Actual Innocence. This bill revises one of the allegations necessary to a petition for a writ of actual innocence from "[the evidence] will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt" to "[the evidence] will prove that no rational trier of fact would have found proof of guilt beyond a reasonable doubt." HB 1432 (Albo) II. BOYD-GRAVES CONFERENCE A. Evidence Of Medical Reports Or Records. This bill amends Section to clarify the admissibility of medical records and bills into evidence in Virginia s General District Courts. SB 982 (Obenshain) B. Expert Witnesses; Literature Designations. This bill amends Section to add the word specific to change the Bostic rule as to medical literature designations in medical malpractice cases. SB 983 (Obenshain) C. Discovery Rule; Statute Of Limitations. This bill provides for a discovery rule for the accrual of a cause of action for injuries resulting from prosthetic devices, toxic exposures, and pharmaceuticals. The limitations period in such situations accrues when the person knew or should have known of the injury. SB 1139 (McEachin) D. Service Of Process On Nonresidents. This bill makes uniform and clarifies the methods of long-arm service of process. HB 1546 (Loupassi) III. VIRGINIA FAMILY LAW COALITION A. Divorce; Temporary Orders; Life Insurance. This bill provides that a party in a suit for divorce, annulment, separate maintenance, or child custody or visitation may be ordered to maintain any existing life insurance policy on the life of either spouse and name as beneficiary the other party, the parties' children, or a person in - 4 -

5 trust for the children. The court may order that the cost of the premiums of such insurance be allocated between the parties. HB 1549 (Iaquinto) IV. COMMISSION ON THE NEEDS OF CHILDREN A. Writ of actual innocence for juveniles adjudicated delinquent. Provides that a juvenile adjudicated delinquent of an offense that would be a felony if committed by an adult may petition the Supreme Court to issue a writ of actual innocence on the basis of biological or nonbiological evidence regardless of his plea or the classification of the felony for which he was adjudicated delinquent. Currently such petitions are limited to those convicted (i) in the case of biological evidence, of a Class 1 or Class 2 felony or equivalent felony upon any plea or of any other felony upon a plea of not guilty or (ii) in the case of nonbiological evidence, of any felony upon a plea of not guilty. HB 1308 (Habeeb) - 5 -