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No good faith exception to will’s no contest provision

Where the decedent’s will contained a no contest provision, the circuit court correctly declined to adopt a good faith and probable cause exception to enforcing the provision.


“Helton and his wife Carol were neighbors of Martha and William Stegmaier [the appellees in this case]. Kalle and Butler [Butler is the appellant] 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.”

Helton made three wills that are relevant to this case. In the 2012 will, Helton bequeathed $40,000 each to Kalle and Butler. “Helton’s residuary estate was to be divided between Butler and Kalle.”

In December 2016, Helton executed a second will. Kalle and Butler’s bequests were reduced to $20,000. Helton bequeathed $5,000 each to the Stegmaiers This will made Martha Stegmaier the beneficiary of Helton’s personal property and residuary estate.

A third will was executed in March 2017. Butler’s bequest was reduced to $10,000. The Stegmaiers’ bequests remained intact and Martha was still beneficiary of the residuary estate. …

“Martha was designated executor[.] … 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.”

Before he died, Helton had several bank accounts. “Helton jointly titled those accounts in Martha’s name, giving her a right of survivorship in the accounts.”

After Helton died, the circuit court admitted the 2017 will. Martha became executor. “In response, Butler filed his complaint seeking to impeach the 2017 Will, effect its recission, and establish the 2012 Will.” Butler also sought to set aside Martha as beneficiary on Helton’s bank accounts.

Martha demurred and sought a declaration that Butler violated the no contest provision in the 2017 will. “[T]he circuit court sustained the demurrer as to Butler’s claim for recission of the 2017 Will and attorney fees.”

After trial, the jury decided the 2017 will was valid and should be admitted to probate. “Martha then renewed her motion for a declaratory judgment … alleging that Butler had violated the no contest provision in the 2017 Will.”

Butler conceded that he violated the provision but “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.”

Expert’s testimony

“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. Following her direct examination, Butler cross-examined Nelson before Martha asked some additional questions of her on redirect.”

After a recess, Butler moved to strike Nelson’s 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[.]”

Ultimately, the court denied the motion because it was not timely made.

“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. …

“‘[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.’”

Butler did not move to strike Nelson’s testimony until after it was presented. “[T]he motion to strike her testimony as inadmissible was simply untimely.”

Butler’s reduced bequest

Butler argues that the circuit court should not have allowed “Martha’s questions concerning his ‘live in’ girlfriends” and erred by denying his motion to strike. He contends that this evidence was not relevant[.] … We disagree. …

“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.”

Bank accounts

“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. …

“[E]ven 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, … any error was harmless.”

No contest clause

“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).’ …

“Notably, however, the majority of the states recognizing such an exception do so by statute. …

“Ultimately, it is the role of the General Assembly to evaluate and adopt or discard particular public policy changes[.] … Hence, we decline to adopt a good faith and probable cause exception based on policy considerations.”

Recission of 2016 and 2017 wills

“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. …

“Code § 8.01-221.2 by its own terms only applies ‘[i]n any civil action to rescind[.], …’

“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,’ … 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.”


Butler v. Stegmaier, et al., Record No. 0584-22-2, March 28, 2023. CAV (published opinion) (Athey Jr.). From the Circuit Court of New Kent County (Bondurant). William W. Sleeth III for appellant. Daniel R. Quarles for appellee. VLW 023-7-122, 21 pp.

VLW 023-7-122