Virginia Has a New Standard for Undue Influence in Trust Contest Cases

This change is especially significant because it aligns the standard to contest a trust on the basis of undue influence with the current standard to contest a will, which was itself changed in 2022.

Text of the New Law

In the 2026 session, the Virginia General Assembly adopted Senate Bill 540, which adds a new section to the Virginia Code, contained in Section 64.2-724.1, and will be titled: “Validity of trust or trust instrument; presumption of undue influence.”

The text of the bill states as follows:

In addition to any other relevant provision of law, where a presumption of undue influence arises in any action contesting the validity of a trust or trust instrument created pursuant to the provisions of Article 1 (§ 64.2-700 et seq.), 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.

Explanation of the New Law

Under current (pre-July 2026) law in Virginia, the plaintiff who is seeking to challenge the validity of a trust on the basis of undue influence bears the ultimate burden of persuasion of doing so (This subject is also covered in a different Estate Conflicts article here.). The plaintiff’s burden of proof is one of “clear and convincing evidence,” which is a standard that is higher than the normal “preponderance” standard that applies in many civil cases. In other words, the plaintiff has the job of convincing the jury or judge that undue influence occurred, and if the plaintiff does not meet that burden of persuasion, the plaintiff will lose.

The new law completely alters the burden of persuasion in most circumstances. Now, the plaintiff receives the benefit of a “presumption” that undue influence was exerted over the decedent, and the burden now shifts to the defendant to rebut that presumption. In other words, the defendant now has the job of convincing the jury or judge that undue influence did not occur, and if the defendant does not meet that burden of persuasion, the defendant will lose.

“In most circumstances” is appropriate when describing this change because the law states that it applies “where a presumption of undue influence arises.” This raises the question: When does a “presumption of undue influence” arise? Currently under Virginia law, a plaintiff enjoys the benefit of a “presumption of undue influence” if the plaintiff can prove at trial that: (1) the settlor (i.e., the person who made the trust) was old when their trust was established; (2) they named a beneficiary who stood in a relationship of confidence or dependence; and (3) they previously had expressed an intention to make a contrary disposition of their property. However, under current law, this “presumption of undue influence” usually makes little practical difference because when the defendant presents their evidence at trial, the presumption can be eliminated if a defendant simply offers some evidence that the settlor’s free will was not overcome in making the trust. It’s incredibly easy to do that in almost all cases. So, the practical effect is that the current (pre-July 2026) presumption then goes away, and the burden of persuasion still falls to the plaintiff. To read more about the nuance of this, please see this Estate Conflicts article.

The current (pre-July 2026) standard was effectively articulated by the Virginia Supreme Court in the 2018 case of Parson v. Miller (822 S.E.2d 169), but this new law alters a significant portion of the holding of that case. While Parson dealt with a contest to a will, rather than a trust, Virginia courts routinely apply similar standards unless they are altered by statute.

Implications of the New Law

The biggest implication of the new law is that it will now be much easier in Virginia for plaintiffs to contest trusts on the basis of undue influence. It will significantly change the strategy of a trial, as now the defendant will be put on the defensive, and the plaintiff’s attorney can emphasize, in their closing argument, the theme of how the defendant must justify why the trust was freely enacted.

The new law is not expected to make a significant difference with respect to motions practice in undue influence cases. It was already very easy for a lawsuit alleging undue influence in the trust context to survive demurrer (under the standard set forth in Parson), and it is virtually unheard of for a trust contest case to be dismissed on summary judgment in Virginia state court.

Consistency with Will Contests

The new law also helpfully brings Virginia law consistent with the law concerning contests to wills on the basis of undue influence. Back 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 proved). That law was codified in Virginia Code Section 64.2-454.1. It is somewhat common for will contest lawsuits to also include claims challenging the validity of a trust. For the past several years, Virginia estate litigators have been living with the awkward reality that the jury had to be instructed on two different standards, one for the will and one for the trust. With jury instructions generally being confusing for the average juror, this situation only compounded the complexity.

Fortunately, now the standards are the same. This is going to make the process of drafting jury instructions much easier, and it is going to make closing arguments much less confusing for juries. In short, Senate Bill 540 is a welcome development for numerous reasons, both substantively and procedurally.

With questions or for more information, please reach out to author Will Sleeth or a member of GRSM’s Estate & Trust Litigation practice.