In future years, the Virginia General Assembly could adopt a law that would make it easier for a person to challenge the validity of a beneficiary designation (a P.O.D. designation), an account titling, or a transfer on death deed (T.O.D. deed) on the basis of undue influence. In fact, Senate Bill No. 540, which was adopted by the General Assembly in 2026, originally contained language providing for just that.
Background
The Virginia General Assembly adopted Senate Bill No. 540 in 2026, which changed the standard for proving undue influence in most trust contest cases. For most trust contest cases in Virginia, the standard for undue influence now involves a presumption that undue influence was exerted over the decedent. This is a significant change from the pre-July 2026 law, which merely created a temporary presumption that was extremely easy to overcome. This change is covered in another Estate Conflicts article here.
Senate Bill No. 540 originally proposed also changing the standard in most instances for proving undue influence in challenges to beneficiary designations, account titlings, and transfer on death deeds. The original text of the bill stated:
In addition to any other relevant provision of law, where a presumption of undue influence arises in any action contesting the validity of a (i) trust or trust instrument created pursuant to the provisions of Article 1 (§ 64.2-700 et seq.) of Chapter 7 of Title 64.2; (ii) provision naming or designating a P.O.D. payee on a P.O.D. account, as both terms are defined in § 6.2-604; (iii) transfer on death deed, as defined in § 64.2-621; or (iv) any other instrument that conveys or transfers real or personal property upon the death of the owner of such real or personal property, the finder of fact shall presume that the undue influence was exerted over the decedent unless, based on all the evidence introduced at trial, the finder of fact finds that the decedent did intend for such real or personal property to be conveyed or transferred as indicated in the contested document or instrument.
What Was Changed
In the final version of the bill that was adopted by the General Assembly, the new standard for proving undue influence when challenging a trust remained. However, the language that would alter the standard for proving undue influence, in most instances, with respect to a P.O.D. account, a T.O.D. deed, and other instruments that convey or transfer property upon the death of the owner, such as a titling of an account as “joint tenants with right of survivorship,” was all removed. As a result, Virginia law on undue influence remains the same when it comes to challenging those instruments.
Possibility of Future Change
There is a chance that a new version of Senate Bill 540 will return in future sessions of the General Assembly for two main reasons. First, it would standardize the law surrounding undue influence across multiple contexts. Often when attorneys challenge a will or trust on the basis of undue influence, they also bring legal challenges to beneficiary designations or account titlings on the basis of undue influence. It would be helpful to the state of the law if the standards were consistent across these contexts. Presently, Virginia law provides that in situations involving both a challenge to a will or trust and a challenge to a beneficiary designation or an accounting titling, the jury needs to be instructed on different standards via different sets of jury instructions. This can create confusion by the jury, adding time and complexity to litigating cases, which serves to increase the costs for the clients. Alternatively, if the judge is ruling on the challenges to the beneficiary designation or an accounting titling, while the jury is ruling on the challenge to the validity of a will, it creates a complicated scenario in which the attorneys, in their closing arguments, need to tailor a portion of the argument to the jury on the basis of one standard and then a separate portion of the argument to the judge on the basis of a different standard.
The second reason why the standard could change in the future is because it took the General Assembly a few years to align the standard for contesting a trust on the basis of undue influence with the standard for contesting a will on the basis of undue influence. In 2022, the General Assembly changed the law to make it easier to contest a will by affording the plaintiff the benefit of a presumption that undue influence was exerted in the creation of the will if the facts giving rise to the presumption were established. That law was codified in Virginia Code Section 64.2-454.1. It took four years for the General Assembly to bring the law surrounding trust contests on the basis of undue influence into alignment with the law surrounding will contests. Based on that history, it may be some time before the law on challenges based on undue influence in these other contexts is standardized across the board.
The General Assembly’s implementation of the change could greatly benefit clients in Virginia, helping streamline litigation and thereby reducing clients’ legal fees.
With questions or for more information, please reach out to author Will Sleeth or a member of GRSM’s Estate & Trust Litigation practice.
The article can also be viewed on GRSM’s Estate Conflicts blog.