Tuesday, October 13, 2009

Think You Have a Claim? Don't Wait

Another typical situation I see quite a bit in estate litigation: After years of taking care of their own finances, a loved one asks you (a child or sibling) for help. Or you (the child or sibling) step in after realizing that the loved one can no longer manage his or her affairs. After digging through a mound of bills, bank and/or brokerage statements and other stuff, it appears there are some questionable transactions involving another family member or friend. Possibly a joint bank account was set up, or large sums of money were "given" to the family member or friend.

Was this all on the up-and-up, or has your loved one been taken to the cleaners? Often, it's hard to tell. But, my advice is to get to work trying to figure it out, assuming that is the role you are supposed to be playing.

If the questionable transactions are in fact the result of fraud or undue influence, then under Virginia law you (or your loved one) likely only have two years from when you (or your loved one) knew or reasonably should have known about the claim to file a lawsuit to try and do something about it.

I have people come to see me fairly often that have waited too long, and what was probably a claim is barred by the statute of limitations, meaning the claim simply cannot be now be brought.

A recent case from Fairfax Circuit Court highlights the risk. A suit was filed claiming that a change of beneficiary designation form was procured by fraud, namely forgery. The forgery allegedly occurred in May 2006, but suit was not brought until February 2009, almost three years later. The Court has ordered a hearing to determine when the forgery should have reasonably been discovered. We don't know the result yet, and there may indeed have been a good reason for not discovering the forgery for some time.

But if you find yourself in that situation, don't waste time; investigate what happened as quickly as you can.