WILLIAM J. REINECK, CURATOR OF THE ESTATE OF FRANK B. STILL, JR.
LAVERNE S. LEMEN, ET AL.
THE CIRCUIT COURT OF ARLINGTON COUNTY William T. Newman, Jr.,
STEPHEN R. McCULLOUGH JUSTICE
appeal we consider whether the trial court erred in upholding
the actions of two children, LaVerne S. Lemen and Jeffrey B.
Still, who relied on a broad power of attorney to create
inter vivos trusts that disinherited other
prospective heirs and caused the entire estate to pass to
Lemen and Still. We also consider whether the trial court
erred in awarding attorney's fees against the personal
representative of an estate in his personal capacity under Code §
64.2-795. We affirm the trial court's reading of the
power of attorney, but we reverse the award of attorney's
1991, husband and wife, Frank B. Still, Jr. and Jane F.
Still, prepared similar estate plans. Frank executed a will and a revocable
trust. Jane also prepared a trust that mirrored Frank's
trust in its dispositional provisions. Under the terms of
these trusts, Frank's children, LaVerne S. Lemen and
Jeffrey B. Still, were to receive 40% of the assets of both
trusts. Jane did not have any children. The terms of both
trusts, however, called for her relatives to receive a 60%
share of both Frank's and Jane's trusts.
1999, Frank and Jane both amended their trusts. Frank's
one-page amendment provided that Jane's relatives would
receive 55% of the trust assets, down from the 60% the trust
had provided in 1991. Frank's children would receive 45%
rather than 40%, as provided in 1991. Jane similarly amended
her trust, i.e. her relatives would receive 55% instead of
60% and Frank's children would receive 45% rather than
also executed a durable power of attorney in 1999. He
designated Jane as his attorney-in-fact should he become
incapacitated, and Lemen as his successor attorney-in-fact
should Jane be unwilling or unable to serve. Frank's
power of attorney vested his agent with broad powers under
Article II, including:
the power to do and perform in a fiduciary capacity as my
Attorney-in-Fact may deem advisable anything of any character
which I might do or perform for myself . . . but excluding
those matters which my Attorney-in-Fact is not permitted to
do as expressly provided in this Power of Attorney or as
provided by law.
attorney-in-fact also had the power under section K of
Article III to:
assign, transfer and convey all or any part of my real or
personal property, or my interest in such property, to, and
withdraw such property from, (i) any revocable trust
established by me during my lifetime, or (ii) any revocable
trust established by my Attorney-in-Fact during my lifetime
which directs the trustee or trustees to administer the trust
for my benefit.
document further granted the attorney-in-fact the power to
"manage" his Individual Retirement Accounts (IRAs),
including but not limited to (i) the exercise of all rights,
privileges, elections, and options that I have with regard to
any [IRA] . . .; (ii) making withdrawals therefrom; (iii)
determining forms of payments on my behalf, or my
beneficiaries; (iv) making, changing or altering investment
decisions; [and] (v) changing custodians or trustees.
(POA Art. III, § M).
Frank's power of attorney vested his agent with the
authority to create any instruments under seal, including
inter vivos trusts, whether revocable or
irrevocable, "for my benefit during my lifetime and/or
the benefit of my wife and my descendants after my
death." (POA Art. V, § F). The power of attorney
restricted the agent's power to "cause assets to
pass to my Attorney-in-Fact . . . whether by inter vivos
transfer, designation of beneficiary of any contract or in
any other manner." Such actions are only permissible
when "specifically authorized by this [POA]." (POA
began to show signs of dementia in 2000. He was diagnosed a
few years later with Lewy Body Dementia. In April 2006, Jane
amended her trust, significantly reducing Lemen and
Still's share from 45% of her estate to a lump sum award
of $20, 000 for each. Frank was moved to a memory care unit
in 2008. In May 2008, Jane again amended her trust, this time
completely disinheriting Lemen and Still. Jane died in 2011.
Her entire trust was distributed to her heirs. Lemen and
Still received nothing from Jane's estate.
Jane's death, Lemen became Frank's attorney-in-fact
and she and Still became co-trustees of Frank's trust and
the executors of his will. In January 2012, Lemen invoked her
power as Frank's attorney-in-fact to amend Frank's
trust. She added a provision to Frank's trust calling for
the trustee to "distribute to [Frank's] descendants,
per stirpes, the amount necessary to result in Frank's
descendants receiving forty-five percent (45%) of the
aggregate disposed of pursuant to Jane's Amendments [to
her trust] and Frank's Trust."
February 27, 2012, Lemen created two new trusts, the living
trusts, naming herself as sole trustee of one and herself and
Still as co-trustees of the other. The living trusts
disinherited Jane's heirs and provided for Lemen and
Still to receive Frank's entire estate at his death. When
Frank died the following day, on February 28, 2012, Lemen
withdrew the assets from the living trusts, totaling
approximately $1.24 million and divided the funds between
Still and herself.
heirs, including William J. Reineck, filed suit against Lemen
and Still alleging that they breached their fiduciary duties.
The court dismissed the case with prejudice on the basis that
the plaintiffs, as contingent beneficiaries, lacked standing
to bring the suit.
next successfully petitioned for an appointment as curator of
Frank's estate. Reineck promptly filed a second suit,
this time in his capacity as curator pursuant to Code §
64.2-451. He alleged that Lemen and Still breached their
fiduciary duties and he asked for the imposition of a
constructive trust. The trial court granted Lemen and
Still's motion for summary judgment, finding that
"Mrs. Lemen acted within the express scope of her
authority as agent under Frank['s] Durable Power of
Attorney and within the authority granted by the Virginia
Uniform Power of ...