Keefe Butler v. Martha Ann Thomas Stegmaier

COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Chaney and Lorish
PUBLISHED
Argued by videoconference
KEEFE BUTLER
OPINION BY
v. Record No. 0584-22-2 JUDGE CLIFFORD L. ATHEY, JR.
MARCH 28, 2023
MARTHA ANN THOMAS STEGMAIER,
AS THE EXECUTOR OF THE ESTATE OF
WILLIAM OLIVER HELTON, JR. AND
IN HER INDIVIDUAL CAPACITY, AND
WILLIAM KEITH STEGMAIER
FROM THE CIRCUIT COURT OF NEW KENT COUNTY
B. Elliott Bondurant, Judge
William W. Sleeth III (Gregory S. Bean; Gordon Rees Scully
Mansukhani, LLP, on briefs), for appellant.
Daniel R. Quarles (Otey Smith & Quarles, on brief), for appellee
Martha Ann Thomas Stegmaier.
Keefe Butler (“Butler”) filed this cause of action in the Circuit Court of New Kent
County (“circuit court”) contesting probate of William Helton, Jr.’s (“Helton”) March 30, 2017
will (“2017 Will”). Butler also sought production of and admission to probate of Helton’s
previous August 6, 2012 will (“2012 Will”). In his complaint, Butler alleged that Martha
Stegmaier (“Martha”) exercised undue influence over Helton and breached both her fiduciary
and statutory duties as executor. Butler also sought injunctive relief, an accounting, and to set
aside the pay-on-death provisions in Helton’s accounts at Bank of America. Finally, Butler
sought to rescind the will and be awarded his attorney fees. On appeal, Butler contends that the
circuit court erred by: (1) failing to grant his motion to strike the testimony of an expert witness
presented by Martha, (2) failing to grant his objections and motions to strike certain questions
and answers regarding his “live in” girlfriends, (3) granting Martha’s renewed motion to strike
his claim seeking to set aside the pay-on-death provisions of certain bank accounts, (4) failing to
recognize a good faith and probable cause exception to the enforcement of a no contest provision
in the 2017 Will, and (5) granting Martha’s demurrer to his claim seeking recission of the will
and an award of attorney fees. For the reasons to follow, we affirm the circuit court.
I. BACKGROUND
Helton and his wife Carol were neighbors of Martha and William Stegmaier. Kalle and
Keefe Butler are Carol’s grandchildren from a previous marriage. Following Carol’s death in
May 2012, Martha began assisting the eighty-eight-year-old Helton with various tasks.
On August 6, 2012, Helton executed the 2012 Will wherein he bequeathed $40,000 each
to his deceased wife’s grandchildren, Butler and Kalle. Certain other bequests were also made,
and Helton’s residuary estate was to be divided between Butler and Kalle. However, on
December 22, 2016, Helton subsequently executed a second will (“2016 Will”) which reduced
the amount of his bequests to $20,000 each to Butler and Kalle. Certain additional bequests were
also made including $5,000 each to Martha and William Stegmaier. The 2016 Will also made
Martha the beneficiary of Helton’s tangible personal property and residuary estate.
Next, on March 30, 2017, Helton executed his third and final will. In the 2017 Will,
Helton further reduced the bequest to Butler to $10,000 but maintained the $20,000 bequest for
Kalle. In the 2017 Will, Martha and William Stegmaier were again left bequests of $5,000 each,
and Martha remained the beneficiary of Helton’s tangible personal property and residuary estate.
However, for the first time, William Stegmaier was designated as a contingent beneficiary of the
residuary estate, and in the event both Martha and William Stegmaier predeceased Helton,
Martha’s sister Patricia Thomas would receive the residuary estate. Martha was designated
executor, her husband contingent executor, and Patricia Thomas executor in the event both
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Martha and William Stegmaier predeceased Helton. A “no contest” provision was also inserted
in the 2017 Will revoking the interests of any beneficiary who challenged the validity of the will
or its provisions.
Prior to his death, Helton maintained various bank accounts at Bank of America and
Martha held his power of attorney related to the bank accounts. In July of 2016, Helton jointly
titled those accounts in Martha’s name, giving her a right of survivorship in the accounts.
Following Helton’s death on November 26, 2017, the circuit court admitted the 2017
Will to probate, and Martha qualified as executor of Helton’s estate. In response, Butler filed his
complaint seeking to impeach the 2017 Will, effect its recission, and establish the 2012 Will.
The complaint also sought to set aside the pay-on-death and joint account designations of Martha
on the Bank of America accounts, enjoin her from taking any detrimental action with respect to
the property of the estate, and recover his attorney fees.1 Martha demurred to the complaint and
filed a counterclaim for a declaratory judgment that Butler had violated the 2017 Will’s no
contest provision. After conducting a hearing on the demurrer, the circuit court sustained the
demurrer as to Butler’s claim for recission of the 2017 Will and attorney fees.
During the subsequent five-day jury trial, Martha was permitted, over Butler’s objection,
to cross-examine him about his “live in” girlfriends. At the conclusion of Butler’s case in chief,
the circuit court granted Martha’s renewed motion to strike the evidence as to Butler’s claim
seeking to set aside the pay-on-death and joint account designations regarding the Bank of
America accounts while denying her motion to strike Butler’s evidence in its entirety.
During Martha’s case in chief, Sherri Nelson (“Nelson”), an attorney whose practice
included wills and trusts, was permitted to testify as an expert witness without objection.
1
Butler also alleged that Martha breached fiduciary duties, but at the close of his case in
chief, the circuit court granted Martha’s motion to strike the evidence as to that claim. This
ruling is not challenged on appeal.
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Following her direct examination, Butler cross-examined Nelson before Martha asked some
additional questions of her on redirect. The following exchange then occurred:
[MARTHA’S COUNSEL]: I think the jury gets my point, Judge.
I’m just going to stop. And I don’t have any other questions of
Ms. Nelson. Thank you, Ma’am.
THE COURT: All right.
[BUTLER’S COUNSEL]: Nothing further for her, Your Honor.
THE COURT: All right. Any further need for Ms. Nelson?
[MARTHA’S COUNSEL]: No, sir.
THE COURT: All right. Ms. Nelson, thank you for your
attendance today. At this point in time you are free to go. Please
do not discuss your testimony with anyone.
[NELSON]: Okay. Thanks.
THE COURT: All right. Thank you.
[MARTHA’S COUNSEL]: Judge, we rest.
THE COURT: All right. Do you want to take a few minutes to see
if y’all want to have any rebuttal evidence?
[BUTLER’S COUNSEL]: We are going to have some rebuttal
evidence, Your Honor. I know a restroom break would be
appreciated as we gather our thoughts for the rebuttal.
THE COURT: Okay.
The circuit court then briefly recessed, and upon resumption of proceedings, Butler
moved to strike Nelson’s expert testimony for lack of foundation, speculation, failure to consider
all variables, improper methods, and unreliability because she had not testified that she held her
opinions to a reasonable degree of professional certainty, nor had she reviewed the 31 exhibits
attached to a deposition she relied on as a basis for her expert opinions. Although the circuit
court initially granted the motion to strike the expert’s testimony, the following morning the
circuit court reconsidered its ruling sua sponte and denied the motion to strike the testimony
based upon the motion to strike not being timely made.
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The jury subsequently decided that the 2017 Will was the valid last will of Helton and
directed that the 2017 Will be admitted to probate. Martha then renewed her motion for a
declaratory judgment on her counterclaim alleging that Butler had violated the no contest
provision in the 2017 Will. Although Butler acknowledged that the will contest he initiated
violated the no contest provision of Helton’s 2017 Will, he argued that because he “acted with
good faith and probable cause” the no contest provision ought not be enforced against him. The
circuit court subsequently held that Butler had violated the no contest provision in the 2017 Will.
On June 1, 2021, the circuit court entered an order admitting the 2017 Will to probate, revoked
the 2017 Will provisions that benefitted Butler, and dismissed any remaining claims.
Butler appealed that decision to the Virginia Supreme Court, and that appeal was
dismissed due to the order not being final because it did not completely dispose of Martha’s
counterclaim. Subsequently, the circuit court, by final order, held that Martha was “entitled to
the judicial declaration she sought” in her counterclaim and incorporated the June 1, 2021 order
therein. Butler appealed the final order to this Court.
II. ANALYSIS
A. Standard of Review
A circuit court’s decision to admit testimony is reviewed for abuse of discretion. Jackson
v. Jackson, 69 Va. App. 243, 247 (2018), aff’d, 208 Va. 132 (2019). An appellate court
“review[s] a circuit court’s decision on a motion to strike in the light most favorable to the
non-moving party, and the non-moving party ‘must be given the benefit of all substantial conflict
in the evidence, and all fair inferences that may be drawn therefrom.’” Dill v. Kroger Ltd. P’ship
I, 300 Va. 99, 109 (2021) (quoting Egan v. Butler, 290 Va. 62, 73 (2015)). We review de novo
questions of law. Yourko v. Yourko, 74 Va. App. 80, 87 (2021).
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Whether a beneficiary has triggered a no contest clause in a will is “a mixed question of
law and fact. ‘What activity or participation constitutes a contest or attempt to defeat a will
depends upon the wording of the “no contest” provision and the facts and circumstances of each
particular case.’” Keener v. Keener, 278 Va. 435, 441 (2009) (quoting Womble v. Gunter, 198
Va. 522, 529 (1956)). “Accordingly, we accord deference to the circuit court’s findings of
historical fact, but review questions of law de novo.” Id.“We examine the circuit court’s decision to sustain [a] demurrer under a de novo standard
of review because it is a pure question of law.” Wilburn v. Mangano, 299 Va. 348, 353 (2020)
(alteration in original) (quoting Mark Five Constr., Inc. v. Castle Contractors, 274 Va. 283, 287
(2007)). A circuit court’s decision to award attorney fees is reviewed “under the deferential
abuse of discretion standard.” Sobol v. Sobol, 74 Va. App. 252, 288 (2022).
B. Butler’s objection to Nelson’s expert testimony was not timely made.
Butler contends that the circuit court erred in denying his motion to strike Nelson’s
testimony. We disagree.
Objections to the testimony of an expert witness on grounds of speculation, reliability,
lack of adequate foundation, failure to consider all relevant variables, improper methodology, or
failure to offer the opinion with a reasonable degree of professional certainty are objections to
the admissibility, not the sufficiency of the evidence. Bitar v. Rahman, 272 Va. 130, 138-39
(2006) (citing Pettus v. Gottfied, 269 Va. 69, 78 (2005); Vasquez v. Mabini, 269 Va. 155, 160
(2005); Countryside Corp. v. Taylor, 263 Va. 549, 553 (2002); John v. Im, 263 Va. 315, 319-20
(2002)). “[A]n objection to the admissibility of evidence must be made when the evidence is
presented. The objection comes too late if the objecting party remains silent during its
presentation and brings the matter to the court’s attention by a motion to strike made after the
opposing party has rested.” Id. at 139 (quoting Kondaurov v. Kerdasha, 271 Va. 646, 655
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(2006)). “In some circumstances, a defect in an expert witness’ testimony may not be apparent
until the testimony of that witness is completed. Hence, an objection raised at that first
opportunity is timely.” Id. at 140 (citing Vasquez, 269 Va. at 162; Countryside Corp., 263 Va. at
553). “The general standards for timely motions to strike the evidence for insufficiency are
inapplicable to objections regarding the admissibility of evidence.” Id. “[A] litigant may not, in
a motion to strike [the evidence], raise for the first time a question of admissibility of evidence.
Such motions deal with the sufficiency rather than the admissibility of evidence.” Id. (quoting
Woodson v. Commonwealth, 211 Va. 285, 288 (1970)).
In Bitar, the plaintiff called a doctor as an expert witness who failed to testify that he held
his opinions to a reasonable degree of medical certainty. 272 Va. at 134-35. The defense made
no objection to the admission of the doctor’s testimony but at the close of the plaintiff’s
evidence, made a motion to strike the plaintiff’s evidence for the doctor’s failure to express his
opinions to a reasonable degree of medical certainty. Id. at 135-36. The circuit court took this
motion under advisement, and the defendant renewed the motion at the close of all evidence. Id.
at 136. The court then denied the motion, finding it an untimely objection, and on appeal, the
Supreme Court affirmed the circuit court’s decision. Id. at 136, 139.
Here, Nelson was qualified as an expert witness without objection and testified on behalf
of Martha. Butler’s counsel then cross-examined the expert witness, and Martha’s counsel asked
some additional questions of Nelson on redirect. Butler’s counsel then stated, “[n]othing further
for her, Your Honor.” Counsel for Martha rested, and Butler’s counsel then agreed with the
court in granting a recess. Following the recess, Butler’s counsel, for the first time, moved to
strike Nelson’s testimony, arguing that the testimony was inadmissible based on foundational
matters the expert failed to state during her testimony. Since any foundational objections to the
admissibility of Nelson’s testimony were evident by the conclusion of her redirect examination,
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we find, consistent with the holding in Bitar, that the motion to strike her testimony as
inadmissible was simply untimely.
Butler relies on Vasquez, 269 Va. 155, and Countryside Corp., 263 Va. 549, for authority
to argue his objection to the admissibility of the expert testimony was timely made. However,
Vasquez merely stands for the proposition that when “the party objecting to flawed expert
testimony made no objection while the testimony was being given, but moved to strike at its
conclusion, after the flaws had become apparent,” he has timely objected. Vasquez, 269 Va. at
163. Also, in Countryside Corp. the Supreme Court permitted an objection to expert testimony
which was not made until the expert’s testimony had concluded.
Here, unlike Vasquez and Countryside Corp., the grounds advanced for objecting to
Nelson’s testimony were evident long before she concluded testifying, yet Butler’s counsel failed
to object until after Nelson was excused from further testimony and Martha rested her case. In
fact, following the conclusion of Nelson’s testimony, Butler consented to the court releasing the
witness from further testimony by stating, “Nothing further for her, your Honor.” Butler now
contends that he could not have objected any sooner than following the conclusion of the recess.
As in Bitar, counsel for Butler failed to object to the admissibility of the testimony of an expert
witness on the grounds that the opinions were not within a reasonable degree of certainty but
delayed doing so until the close of the defendant’s evidence. We therefore agree with the circuit
court that he failed to timely object and, by failing to do so, waived his objection to the
admissibility of Nelson’s testimony.
C. The circuit court did not err in permitting Martha to question Butler regarding
his “live in” girlfriends.
Butler next contends that the circuit court erred by failing to sustain his objections to
Martha’s questions concerning his “live in” girlfriends and further by failing to grant his
subsequent motions to strike his responses thereto. He contends that this evidence was not
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relevant or, in the alternative, that the probative value of the evidence was substantially
outweighed by unfair prejudice. We disagree.
Virginia Rule of Evidence 2:401 defines relevant evidence as “evidence having any
tendency to make the existence of any fact in issue more probable or less probable than it would
be without the evidence.” “Relevant evidence is evidence that has a ‘logical tendency, however
slight, to prove a fact at issue in the case.’” Howard v. Commonwealth, 74 Va. App. 739, 756
(2022) (quoting Winston v. Commonwealth, 268 Va. 564, 596 (2004)). Butler contends that
when Martha was asked while testifying to identify all the reasons Helton had for reducing his
bequest to Butler, she failed to point to Butler’s relationships with women. As a result, he
contends that both the questions concerning his intimate relationships with women and the
evidence adduced therefrom were irrelevant and inadmissible to establish any relevant fact in the
case. For support, Butler cites a case from the United States Court of Appeals for the Seventh
Circuit where evidence of cohabitation was found irrelevant and excluded. McClain v.
Owens-Corning Fiberglass Corp., 139 F.3d 1124, 1128 (7th Cir. 1998). However, we do not
find the authority he cites persuasive. In McClain, the Seventh Circuit Court of Appeals found
that evidence of a plaintiff’s cohabitation after her husband’s death was irrelevant to her loss of
consortium claim. By contrast, this case involves a will contest with the cohabitation in question
being a potential factor in the reduction of a bequest to a beneficiary of the will.
Since the jury could have concluded that Helton’s opinion of Butler’s relationships with
women was a factor in explaining Helton’s testamentary disposition towards Butler, the evidence
was relevant.2 This potential inference was relevant even if Martha’s attention had to be drawn
to Butler’s cohabitation because she did not identify the “live in girlfriends” as one of the reasons
2
“In order to rebut the presumption [of undue influence], the proponent of the will is
required to put forth countervailing evidence tending to prove that the decedent’s will was not
overborne.” Parson v. Miller, 296 Va. 509, 527-28 (2018).
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for Helton reducing his bequest to Butler. Moreover, since “[w]e may not hold that a circuit
court abused its discretion regarding an evidentiary admission unless ‘reasonable jurists could
not differ’ with respect to its admissibility,” we cannot find here that the circuit court abused its
discretion in concluding that evidence of Butler’s cohabitation with women was a relevant
subject of inquiry. Fields v. Commonwealth, 73 Va. App. 652, 679 (2021) (quoting Dalton v.
Commonwealth, 64 Va. App. 512, 521 (2015)).
Alternatively, Butler argues that even if the evidence of his cohabitation with women was
relevant, it should not have been admitted since the probative value of the evidence was
outweighed by the unfair prejudice it would engender. “Relevant evidence may be excluded if
. . . the probative value of the evidence is substantially outweighed by . . . the danger of unfair
prejudice . . . .” Va. R. Evid. 2:403(a). “‘[U]nfair prejudice’ refers to the tendency of some
proof to inflame the passions of the trier of fact, or to invite decision based upon a factor
unrelated to the elements of the claims and defenses in the pending case.” Lee v. Spoden, 290
Va. 235, 251 (2015). However, “the mere fact that evidence is highly prejudicial to a party’s
claim or defense is not a proper consideration in applying this balancing test. Rather, a trial
court must determine whether the probative value of the evidence is substantially outweighed by
its unfair or unduly prejudicial effects.” Id. at 252.
Butler offers as persuasive authority an unpublished order of the United States District
Court for the Western District of Oklahoma wherein that court exercised its discretion to grant a
motion in limine seeking to exclude evidence of plaintiff’s cohabitation as irrelevant and unfairly
prejudicial. Barnhill v. M.H.F. Inc., No. CIV-06-110-T, 2007 WL 9711118, at *2 (W.D. Okla.
Nov. 16, 2007). Here, Butler alleges that the jury being made aware that he cohabited with a
woman who was not his wife created unfair prejudice against him; however, we cannot find that
the circuit court abused its discretion in determining that the probative value of Helton’s opinion
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of his step-grandson’s lifestyle outweighed any prejudicial effect. Moreover, the circuit court
was best positioned to weigh the admissibility of the evidence and therefore we will not disturb
the circuit court’s ruling.
D. Any error of the circuit court in striking the evidence as to the Bank of America
accounts was harmless.
Butler next contends that the circuit court erred by granting Martha’s motion to strike
Butler’s claim of entitlement to Helton’s funds in the Bank of America accounts. Assuming
without deciding that the circuit court erred in granting the motion to strike, we find any error
harmless.
“No judgment shall be arrested or reversed” “[w]hen it plainly appears from the record
and the evidence given at the trial that the parties have had a fair trial on the merits and
substantial justice has been reached.” Code § 8.01-678. Here, Helton held various accounts at
Bank of America which pursuant to the terms of the accounts became the property of Martha
upon Helton’s death by right of survivorship. In addition, the 2017 Will named Martha as
recipient of his residuary estate, and the 2017 Will was confirmed by the jury as Helton’s valid
last will and testament. Thus, even if the jury invalidated Martha’s survivorship rights in the
Bank of America accounts, Martha would have received the funds in the bank accounts as a part
of the residuary of Helton’s estate. Therefore, we conclude that “substantial justice” has been
reached and find that any error was harmless.
E. The circuit court did not err in failing to recognize a good faith and probable
cause exception to the enforcement of the no contest clause.
Butler next contends that the circuit court erred in failing to recognize a good faith and
probable cause exception to the enforcement of the no contest clause in the 2017 Will and, as a
result, contends this Court should reverse the circuit court’s declaratory judgment enforcing the
no contest clause. We disagree.
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Our Supreme Court has long considered a will’s no contest clause to be valid and
enforceable. Womble, 198 Va. at 525. Recognizing the tension between “the societal benefit of
deterring the bitter family disputes that will contests frequently engender” and the “ancient
maxim that ‘equity abhors forfeitures,’” the Court explained that “[w]e have reconciled these
competing values by stating that no-contest provisions are simultaneously ‘strictly enforced’ and
‘strictly construed.’” Hunter v. Hunter, 298 Va. 414, 424 (2020) (first quoting Keener, 278 Va.
at 442; and then quoting Jones v. Guaranty & Indem. Co., 101 U.S. 622, 628 (1879)). Butler
admits he violated the terms of the no contest provision here but argues that his challenge was
made in good faith and based on probable cause that Helton lacked capacity or was otherwise
subject to undue influence. While others have made this same argument in the past, no decision
has resolved the question to date. See, e.g., Womble, 198 Va. at 528 (finding argument waived
because it had not been raised in the trial court); Hunter, 298 Va. at 425-26 (deciding on other
grounds without addressing whether exception applied).
In Womble, the Supreme Court discussed the policy considerations in support of and
against recognizing a good faith and probable cause exception to the enforcement of in terrorem
clauses. The outline of that discussion is worth recounting here.
The Supreme Court first noted that “authorities in support” of a good faith and probable
cause exception to the enforcement of no contest clauses argue “that a sound public policy
demands that the truth of a disputable claim should be ascertained as the law provides, and that
since courts are created to administer justice there should be no penalties inflicted upon those
who seek their performance of that function.” Womble, 198 Va. at 525. The concern is that “if a
will is actually invalid, a strict and literal application of such [a] ‘no contest’ clause would tend
to prevent the establishment of this fact,” and “[t]he persons, who may have been instrumental in
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the creation of the invalid document and who were to profit most by its admission to probate,
would be provided a helpful cover for their wrongful acts.” Id.The Supreme Court noted that some authorities argue that the good faith and probable
cause exception should be recognized where the ground for impeaching the will is revocation by
a later will:
These authorities declare that where the contest is based upon the
claim of revocation by a later will, the public has an interest in
having all the documents properly presented to the court; a person
knowing of such instrument has the moral if not the legal duty of
presenting the instrument for consideration; it would be against
public policy to deter such person from presenting the same if he
knew that he would risk the loss of all benefits under the will if he
took any action on it.
Id. at 526. The Supreme Court observed that “[t]he same authorities” would recognize the
exception where the will in question is forged because “the public is interested in the discovery
of the commission of the crime of forgery, and such forgery . . . is usually based upon evidence
more definite in character than that tending to establish the shadowy lines of demarcation
involved in mental capacity, undue influence or fraud.” Id.The Court also explained that “authorities of equal dignity” decline to recognize the
validity of a good faith and probable cause exception. Id. The Supreme Court quotes the
reasoning of the Supreme Judicial Court of Massachusetts where it stated:
The ease with which plausible contentions as to mental
unsoundness may be supported by some evidence is also a factor
which well may be in the mind of a testator in determining to insert
such a clause in his will. Nothing in the law or in public policy, as
we understand it, requires the denial of solace of that nature to one
making a will. A will contest not infrequently engenders
animosities and arouses hostilities among the kinsfolk of the
testator, which may never be put to rest and which contribute to
general unhappiness. Moreover, suspicions or beliefs in personal
insanity, mental weakness, eccentricities, pernicious habits, or
other odd characteristics centering in or radiating from the testator,
may bring his family into evil repute and adversely affect the
standing the community of its members. Thus a will contest may
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bring sorrow and suffering to many concerned. A clause of this
nature may contribute to the fair reputation of the dead and to the
peace and harmony of the living. Giving due weight to all these
considerations, we are unable to bring our minds to the conviction
that public policy requires that a testamentary clause such as here
is involved be stamped as unlawful, even if the contestant had
good grounds for opposing the allowance of the will. It seems to
us that, both on principle and by weight of authority, this is the
right result.
Id. at 526-27 (quoting Rudd v. Searles, 160 N.E. 882, 886 (Mass. 1928)). The Court noted that
these deleterious effects had evidently manifested themselves amongst the family members
litigating the case. Id. at 527. After its discourse concerning the arguments for and against
recognition of a good faith and probable cause exception, the Court decided the case on other
grounds and declined to adopt either position. Id. at 528.
Butler argues that we should recognize this exception to a no contest clause because it is
the majority rule across our sister states and the better policy outcome, and also because he
believes the exception was well-established at English common law.
Butler counts “36 states [that] have either adopted some version of a good faith or
probable cause exception to such no contest clauses, or set forth a class of legal actions for which
no contest clauses do not apply (with two states holding that such clauses are unenforceable).”
See also Gus G. Tamborello, In Terrorem Clauses: Are They Still Terrifying?, 10 Estate Plan’g
& Cmty. Prop. L.J. 63, 98, app. (2017) (identifying 32 states as recognizing some form of
exception and 5 holding at least some no contest clauses are unenforceable). Indeed, the
Restatement (Third) of Property and the Uniform Probate Code both recognize a good faith
exception.3 Notably, however, the majority of the states recognizing such an exception do so by
3
See Restatement (Third) of Property, Wills and Donative Transfers § 8.5 (2003) (“A
provision in a donative document purporting to rescind a donative transfer to, or a fiduciary
appointment of, any person who institutes a proceeding challenging the validity of all or part of
the donative document is enforceable unless probable cause existed for instituting the
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statute. See Tamborello, supra, at 98-99, app. (identifying 23 states with statutes establishing an
exception).
Butler also asserts that the reasons enumerated in Womble in favor of recognizing an
exception are more compelling than those it listed against. He argues that times have changed
since the Court’s considerations in 1956 and that now the concern for familial harmony,
happiness, and reputation is less significant than it was 70 years ago. He argues that conversely,
the reasons supporting recognition of the exception have grown in importance. He represents to
the Court that elder abuse and exploitation is a greater problem now than it was decades ago and
therefore concludes that there is a strong need for allowing an exception to the enforcement of no
contest clauses. He invites this Court to consider a hypothetical situation in which an elder
abuser uses improper influence to obtain a beneficial will including a no contest clause and then
“hide[s] behind the safety of the no contest clause” because other beneficiaries are unwilling to
risk their legacies to hold the wrongdoer accountable.
At present, there is no statutorily created good faith and probable cause exception to
enforcement of no contest clauses in Virginia. Ultimately, it is the role of the General Assembly
to evaluate and adopt or discard particular public policy changes as the elected representatives of
Virginians directly accountable to the citizenry. Hence, we decline to adopt a good faith and
probable cause exception based on policy considerations.
Absent any statute or Virginia caselaw recognizing a good faith exception to no contest
clauses, Butler argues that the English common law recognized such an exception and asks us to
apply that exception. Code § 1-200 states, “The common law of England, insofar as it is not
proceeding.” (emphasis added)); Unif. Prob. Code § 3-905 (2019) (“A provision in a will
purporting to penalize any interested person for contesting the will or instituting other
proceedings relating to the estate is unenforceable if probable cause exists for instituting
proceedings.” (emphasis added)).
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repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall
continue in full force within the same, and be the rule of decision, except as altered by the
General Assembly.” Butler relies on two English chancery cases Powell v. Morgan, 23 Eng.
Rep. 668; 2 Vern. 90 (1688), and Morris v. Burroughs, 26 Eng. Rep. 253; 1 Atk. 397 (1737).
We note continuing uncertainty about whether 1776 or 1792 “fixes the date of the
Commonwealth’s adoption of English common law.” White v. United States, 300 Va. 269, 277
n.5 (2021). However, we need not resolve that question today as both cases Butler cites as
persuasive were decided before either date.
Yet, straightforward analysis is frustrated by uncertainty about whether the English law
of equity is contemplated by Code § 1-200’s use of the term English “common law” such that
English equity cases also provide rules of decision. This question as to whether equity is
included in Code § 1-200’s use of the term common law has not been answered by our Supreme
Court, and it appears open to debate. See Stuart A. Raphael, What is the Standard for Obtaining
a Preliminary Injunction in Virginia?, 57 U. Rich. L. Rev. 197, 206-14 (2022) (discussing the
historical arguments for and against understanding Code § 1-200 to have included equity in the
adoption of common law). If Code § 1-200 does include equity in its use of the term “common
law” then English chancery decisions could constitute binding authority, but if it does not, then
English chancery decisions could be at most persuasive authority. Equity and common law were
understood as different bodies of law in the 18th century,4 and we are not prepared to conclude
either that equity is or is not included in Code § 1-200’s adoption of English common law.
4
In England, equity was a distinct body of law separate from the common law. See
W. Hamilton Bryson, The Merger of Common-Law and Equity Pleading in Virginia, 41 U. Rich.
L. Rev. 77, 77-78 (2006) (“The English common law and equity are separate bodies of
substantive law, although they are interconnecting[,]” and “the Court of Chancery . . . was
primarily a court of equity, but it had a limited common-law jurisdiction in matters involving
litigation against officers of the King.”); see also 3 William Blackstone, Commentaries *429-455
(generally surveying equity and clearly treating it as distinct from common law).
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We find it unnecessary to resolve this question however, because Morris and Powell
simply do not stand for the rule Butler claims they do. Where “immense scholarly effort” and
“English jurists, legal historians, and commentators have concluded” a particular principle
existed in English common law, we will apply it as the law in Virginia. White, 300 Va. at 285,
287. Powell and Morris fail to establish that a good faith and probable cause exception to no
contest clauses is a “longstanding” feature of English common law.
Powell provides but scant support for Butler’s position, and Morris provides no support.
In Powell, a will included a no contest clause, and the plaintiff lost a suit at equity challenging
said will. The opinion states: “[t]here was probabilis causa litigandi, and it was not a forfeiture
of the legacy.” 23 Eng. Rep. at 668; 2 Vern. at 91. The opinion is bereft of any reasoned
analysis articulated in support of its conclusion, and we therefore do not find it persuasive. In
Morris, the plaintiffs successfully challenged a will containing a no contest clause, and plaintiffs
then took from the estate “subject to the custom of London,” rather than by the will. 26 Eng.
Rep. at 256; 1 Atk. at 404. Morris therefore presents a fundamentally different scenario easily
distinguished from the outcome here where Butler lost the will contest yet still desires to benefit
from the will despite the existence of the no contest clause. The inapposite factual and
procedural situation makes it impossible to find that the decision in Morris could provide the
basis for a good faith and probable cause exception.
We are also not the first court to attempt to divine whether Powell and Morris set forth an
established tradition of applying a probable cause exception to no contest clauses. In
Smithsonian Inst. v. Meech, 169 U.S. 398, 413-14 (1898), the Supreme Court concluded, after
reviewing these and other cases, that English common law applied a probable cause exception
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where there was no “gift over” provision in the will.5 A “gift over” or a “bequest over” is a
clause in a will that operates to change a bequest to a different beneficiary if a particular
condition set out in the will is met or violated. Without a “gift over,” an in terrorem clause was a
mostly empty threat.6 Thus, so long as a disgruntled beneficiary had probable cause, they could
challenge the will without consequence.7
Thus, even if England recognized an exception for challenges based on probable cause in
certain circumstances, the exception would not apply here where the contested will plainly
“gifted over” the bequest of $10,000 to Butler to the other “devisees and legatees mentioned in
my said will proportionately.” Moreover, our Supreme Court in Womble recognized that “[i]n
most jurisdictions the distinction between such a conditional gift of realty and personalty with no
gift over and one with gift over has been disregarded.” 198 Va. at 525; see also Martin D.
Begleiter, Anti-Contest Clauses: When You Care Enough to Send the Final Threat, 26 Ariz. St.
L.J. 629, 649-50, 650 n.140 (1994) (noting that “[i]n the last fifty years, almost all courts have
5
An English law commentator reached the same conclusion about the significance of the
“gift over” provision. See, e.g., 2 Thomas Jarman, et al., A Treatise on Wills (2d ed. 1855)
(describing no contest clauses as “regarded in terrorem only . . . therefore, a legatee will not, by
having contested the validity or effect of the will, forfeit his legacy, where there was probabilism
causa litigandi, unless, it seems, the legacy be given over upon breach of the condition”); see
also Wills – Construction – Condition Not to Contest Will, 25 Harv. L. Rev. 745, 745-46 (1912)
(citing Powell and Morris to explain that in England “a contest based on probable cause will not
be allowed to work a forfeiture” before finding “this applies only when there is no gift over”).
6
While it has become the practice to use “no contest” and “in terrorem” synonymously—
both describing an enforceable provision in a will disinheriting those who violate the terms of
said provision—historically no contest clauses were often found to be unenforceable and then
described as “in terrorem”—that is, they were only meant to terrify one from challenging the
will. Gerry W. Beyer, et al., The Fine Art of Intimidating Disgruntled Beneficiaries with In
Terrorem Clauses, 51 SMU L. Rev. 225, 239 (1998).
7
This is another reason Butler is mistaken in his reliance upon Morris. Not only was the
will challenge successful, the court found the no contest clause was “in terrorem only” because
the will did not identify another person who should receive the bequest in the event the clause
was violated. Morris, 26 Eng. Rep. at 256; 1 Atk. at 404.
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rejected the doctrine” of considering whether there was a gift over in determining the validity of
a no contest clause). Even if England did once recognize this exception, we will now, following
the logic in Womble and like many of our sister states, enforce no contest clauses regardless of
the presence or absence of a gift over provision. Therefore, it follows that any limited existence
of a good faith and probable cause exception to enforcement of a no contest clause in the absence
of a gift over has died with the distinction upon which its existence depended.
Hence, we cannot conclude that the circuit court erred in declining to recognize an
exception to the no contest clause in Helton’s will and instead finding that the clause invalidated
the $10,000 bequest to Butler. This strict enforcement “without any wincing on our part
concerning its alleged harshness or unfairness,” Hunter, 298 Va. at 424, is required by Virginia
law absent a legislative change.
F. The circuit court did not err when it granted Martha’s demurrer as to Count II
of Butler’s complaint and the request for attorney fees.
Butler finally contends that Count II of his complaint seeking recission of the 2016 and
2017 Wills based on undue influence and his request for attorney fees was authorized pursuant to
Code § 8.01-221.2. We disagree.
In interpreting statutes, this Court seeks “to ascertain and give effect to legislative intent,”
and it “determines [that] intent from the words employed in the statute.” Botkin v.
Commonwealth, 296 Va. 309, 314 (2018) (quoting Brown v. Commonwealth, 284 Va. 538, 542
(2012)). When the words of the statute are “plain and unambiguous, [the Court is] bound by the
plain meaning of that statutory language.” Beck v. Shelton, 267 Va. 482, 488 (2004) (quoting
Lee County v. Town of St. Charles, 264 Va. 344, 348 (2002)).
Code § 8.01-221.2 states:
In any civil action to rescind a deed, contract, or other instrument,
the court may award to the plaintiff reasonable attorney fees and
costs associated with bringing such action where the court finds,
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by clear and convincing evidence, that the deed, contract, or other
instrument was obtained by fraud or undue influence on the part of
the defendant.
Butler contends that “other instrument” includes a will, and based thereon, his complaint alleging
that the will was the product of undue influence entitled him to seek recission of the will and an
award of reasonable attorney fees.
However, whether a will meets the definition of “other instrument” is irrelevant here
since Code § 8.01-221.2 by its own terms only applies “[i]n any civil action to rescind,” and an
“[e]quitable recission is a ‘remedy which calls for the highest and most drastic exercise of the
power of a court of chancery—to annul and set at naught the solemn contracts of parties.’”
Young-Allen v. Bank of America, N.A., 298 Va. 462, 468 (2020) (quoting Schmidt v. Household
Fin. Corp., II, 276 Va. 108, 115 (2008)). Since recission is only available as a remedy in equity
and “the whole subject of the probate of wills rests upon and is regulated by statute law,” Tyson
v. Scott, 116 Va. 243, 250 (1914) (citations omitted), impeachment of a will pursuant to Code
§ 64.2-448 is not recission within the meaning of Code § 8.01-221.2. Code § 8.01-221.2 does
not apply to any action to impeach a will pursuant to Code § 64.2-448. Hence the circuit court
did not err in granting Martha’s demurrer as to Count II of Butler’s complaint.8
III. CONCLUSION
Since the circuit court did not err by: (1) refusing to strike the testimony of Nelson,
(2) allowing testimony concerning Butler’s “live in” girlfriends, (3) refusing to recognize a good
faith and probable cause exception to the enforcement of the 2017 Will’s no contest clause, or
(4) granting Martha’s demurrer to Butler’s second count, and because, assuming without
8
Additionally, by its plain terms, Code § 8.01-221.2 only awards attorney fees upon a
successful showing that the “instrument was obtained by fraud or undue influence.” Here, the
jury did not find the 2017 Will was the product of any fraud or undue influence; therefore, even
if Code § 8.01-221.2 applied to actions to impeach a will, it would not have entitled Butler to
attorney fees.
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deciding that the circuit court erred in striking the claim concerning the Bank of America funds,
any error committed by the circuit court was harmless, we affirm the judgment of the circuit
court.
Affirmed.
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