What About Virginia Trusts?

Today, it is common for people to dispose of their property through a trust agreement, rather than a will.  Usually, this is done using a "pour-over" will, which leaves all of the decedent's property to their trust.  The trust agreement, in turn, describes how the property is to be divided amongst the trust's beneficiaries.  This raises the question: Does the testamentary exception also apply to communications between relating to a decedent's trust?

While the Supreme Court of Virginia has recognized that the testamentary exception applies to wills and "other similar documents," the Court has not explicitly held that it applies to trusts.  Courts in many other states have been more clear, recognizing that a trust which disposes of a decedent's property is functionally equivalent to a will.

Citing those cases, we have successfully argued to a Virginia circuit court that the testamentary exception should be applied to require the production of attorney-client communications relating to a trust.  Given the Supreme Court's recognition that the testamentary exception applies to "other similar documents," it seems likely that most courts in Virginia would follow suit.

Benjamin P. Kyber
Richmond Appellate Law Attorney Serving Virginia, Henrico County.
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