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Court Denies Petition to Change Personal Rep

Deborah Elkins//February 2, 2016

Court Denies Petition to Change Personal Rep

Deborah Elkins//February 2, 2016

A Chesapeake Circuit Court denies a petition filed by the mothers of decedent’s two children who seek to replace decedent’s own mother as the representative of his estate in its pursuit of a wrongful death action.

Petitioners allege the only asset of decedent’s estate is a potential wrongful death judgment, and that their children are the statutory beneficiaries of any award in that case. However, respondent, as personal representative of decedent, has the authority to prosecute the action and negotiate a potential settlement on behalf of the children. Petitioners claim they are in a better position to know the beneficiaries’ needs and that respondent is in the position to receive a substantial statutory fee as administrator of the estate. However, it should be noted that any compromise of a wrongful death claim must be approved by the court pursuant to Va. Code § 8.01-55.

In Beavers v. Beavers, 185 Va. 418 (1946), the Supreme Court of Virginia held that under the relevant statutes in effect at the time, an administrator qualified in the usual manner should not be removed except for cause. Code § 64.2-1410 now provides that if the order of the court or clerk is not complied with, or whenever from any cause it appears proper, the court may revoke and annul the powers of any fiduciary.

In the context of a petition to remove the administrator of an estate, there must be a showing of fraud, breach of trust, gross neglect or some other default on the part of the fiduciary which would make her removal proper or necessary for the continued orderly administration of the estate.

Here, the court finds that substitution of petitioners for respondent would prove unworkable, given decedent’s estrangement from the women, the animosity between decedent’s family and the mothers of his children and potential conflicts between petitioners in advocating for their own children. 

The court denies petitioners’ motion and also denies respondent’s motion for sanctions in the form of attorney’s fees.

Norris v. Hicks, Adm’r (Brown) No. CL 15-2633, Dec. 18, 2015; Chesapeake Cir.Ct.; Karen R. Carnegie for petitioners; John E. Zydron for respondent. VLW 016-8-011, 2 pp.

VLW 016-8-011

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