Virginia Adopts a New Standard for Challenging Trusts Based on Undue Influence

Virginia is making a notable change to how courts handle trust disputes, and it takes effect July 1, 2026.

The Virginia General Assembly passed Senate Bill 540 during the 2026 session, adding a new section to the Virginia Code, contained in Section 64.2-724.1, titled: “Validity of trust or trust instrument; presumption of undue influence.” The law establishes a new standard for cases where someone challenges the validity of a trust based on what is called undue influence.

What Is Undue Influence?

Undue influence is a legal concept that comes into play when someone is believed to have pressured, coerced or manipulated another person, including under duress, into changing their estate plan in a way that benefits the bad actor and deviates significantly from the status quo. These claims often arise after an elderly or vulnerable person passes away and family members believe the trust does not reflect what their loved one truly wanted.

How the Law Worked Before

Under the old framework, the plaintiff bringing the challenge carried the full burden of proving undue influence by clear and convincing evidence, which is a higher standard than what applies in many civil cases. In limited scenarios, a presumption of undue influence could arise. However, the defense’s showing that the evidence is not substantially more likely to be true than untrue, including highlighting inconsistencies in the same, could neutralize and/or shift the burden back to the plaintiff. In practice, this made undue influence claims in trust cases difficult and costly to sustain.

What Changes Under the New Law

Senate Bill 540 reverses that dynamic. Once the facts are sufficient to trigger a presumption of undue influence, the burden shifts to the party defending the trust. That party must now convince the judge or jury that the person who created the trust did so freely and intentionally. If they cannot meet that burden, the challenger prevails.

The law does not create an automatic presumption in every case. The circumstances still need to support it. But when they do, the defending party is now the one who must carry the weight of proof at trial. This dynamic is powerful and could have unintended consequences, including giving disgruntled third parties a path to mount frivolous challenges.

Alignment With Will Contest Law

The change also brings trust contests in line with Virginia’s existing standard for will contests. In 2022, the General Assembly shifted the burden in will contest cases in a similar fashion, and since then Virginia courts have applied two different standards depending on whether the challenge involved a will, a trust, or both. That created an awkward situation in cases where both documents were being challenged at the same time, including complications in how juries were instructed. Senate Bill 540 resolves that inconsistency. 

What It Means Going Forward

Attorneys who handle these cases in Virginia will need to adjust their strategies accordingly. Defendants in trust contest cases will now need to prepare to affirmatively demonstrate that the trust reflects the decedent’s true intentions, rather than waiting for the challenger to fall short.

Attorneys preparing estate plans also must reevaluate policies and procedures. One must be confident that the file contains enough information to support the terms of the Trust.

For families navigating questions about a loved one’s trust, the new law may affect the viability and outcome of a potential dispute. Anyone with concerns about a trust, whether as a potential challenger or as someone defending one, should consult with an estate litigation attorney familiar with the updated standard.

Senate Bill 540 takes effect July 1, 2026.

For additional information, please contact any of the following:

Adam Abramowitz at [email protected] or Sarah Broder at [email protected]  with any questions or more specific situations.