Legal Question in Wills and Trusts in Virginia

Will vs POA

I recently (2 wks ago) learned that while my brother was my father's POA in 2002 he transferred all of the real estate to himself, my sister and my father and mother as ''life estate''. My father died in May 2005. My brother was named Executor. The will was read in Feb 2006. Myself, my brother, my sister and my mother were given 1/4 shares in all of my father's personal and real estate property. 4 days after the will was read the deed was changed to my brother, my sister and my mother as ''life estate''. It appears my brother is attempting to eliminate me from the will. Do I, at this point, have any recourse? Are there laws against self dealing for personal gain by a POA? My mother, 85 yrs old, just found out recently also said it was never her intentions to eliminate me even though she signed the deeds. She was just told by my brother what was included and trusting him to carry out my father's and her wishes to be equal to all children, she signed documents without reading them. By brother is her POA as well. What recourse does she have now?


Asked on 4/13/09, 9:12 am

2 Answers from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

Re: Will vs POA

The POA ceases to be of effect upon the death of the testator and cannot override the distributions of property made in your father's will and any subsequent alterations to deeds regrding such property should reflect these dispositions indicated in the will.(However, if your mother has subsequently conveyed away her interests to your brother, that could make the situation you've described as further problematical.)

You would appear well advised to arrange for a consultation with an attorney appropriately knowledgeable and experienced in Virginia probate matters who can review the various documents and relevant facts and further advise you on his matter.

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Answered on 4/13/09, 10:48 am
Jonathon Moseley Moseley & Associates Law Firm

Re: Will vs POA

The details of your situation are a little confusing and a precise answer is not possible without more detail.

However, in general, the holder of a POA has a fiduciary duty to the principal (your father) and to anyone with standing "through" your father such as his heir, you.

You might have to prove that what your brother did was NOT your father's REQUEST to your brother. But if your brother took advantage of the POA for his own personal benefit, this would definitely be a violation of his fiduciary duty.

(Note that you might have to claim THROUGH your father as your father's heir, perhaps not directly. That is your father's will in distributing the house was thwarted.)

However, when you say a "life estate" this can mean that their interest in the property lasted only while your father was alive, giving them the right to live there until he died. So their "life estate" may already have terminated. Or it may be measured by THEIR life, and it will only last until they die.

It may be a little hard to win such a lawsuit on the grounds that he seems to be acting to benefit NOT only himself, but also everyone else except you. SO it might not be so clearly an example of self-dealing.

Also I don't understnad how a will can be changed after it is read. I don' tknow what that means.

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Answered on 4/13/09, 9:09 pm


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