no-contest clause in Virginia

2026ANALYSIS “[W]hether a no-contest clause in a will has been triggered presents, on appellate review, a mixed question of law and fact.” Keener v. Keener, 278 Va. 435, 441 (2009).

2026The circuit court erred by finding that the remaining appellants violated the no-contest clause. “[W]hether a no-contest clause in a will has been triggered presents, on appellate review, a mixed question of law and fact.” Keener v. Keener, 278 Va. 435, 441 (2009).

2026Whether conduct “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.” Id. (quoting Womble v. Gunter, 198 Va. 522, 529 (1956)). “[A]pplying the language of a written document to an undisputed fact” is “a pure question of law, subject to review de novo on appeal.” Id. at 442.

2026See id. (noting that “[m]any courts have struggled with the boundaries” of no-contest clauses because they “seek[] to protect the right of a testator ‘to dispose of his property as he sees fit,’ while not assuming that he wanted to disinherit anyone who questioned exactly how he intended to do so” (quoting Womble, 198 Va. at 532 )). - 12 - The circuit court seemed to accept that the appellants could have challenged Schlesinger’s qualifications without violating the no-contest clause had they done so on other grounds, such as by arguing that Schlesinger was “legally incompetent or legally disqu

2026That fact further undermines Schlesinger’s argument that Bakwin intended to prohibit the beneficiaries from challenging Schlesinger’s and Lazetera’s qualifications as trustee and successor trustee based on Schlesinger’s conduct as executor.16 16 We enforce no-contest clauses because of the “societal benefit of deterring . . . bitter family disputes.” Hunter, 298 Va. at 424 (quoting Rafalko, 290 Va. at 402 ).

2026See id. (noting that “[m]any courts have struggled with the boundaries” of no-contest clauses because they “seek[] to protect the right of a testator ‘to dispose of his property as he sees fit,’ while not assuming that he wanted to disinherit anyone who questioned exactly how he intended to do so” (quoting Womble, 198 Va. at 532 )). - 12 - The circuit court seemed to accept that the appellants could have challenged Schlesinger’s qualifications without violating the no-contest clause had they done so on other grounds, such as by arguing that Schlesinger was “legally incompetent or legally disqu

2023Eleanor’s attorney said at oral argument that Chip might simply have “stated what his position was to Eleanor before he filed suit.” But when asked if Eleanor would have then claimed that Chip’s doing so violated the no-contest clause, her attorney acknowledged, “she may have.” -9- “One of the functions of pleadings in an action is to limit the issues and narrow the proofs.” Eubank v. Spencer, 203 Va. 923, 925 (1962).

2023Eleanor’s attorney said at oral argument that Chip might simply have “stated what his position was to Eleanor before he filed suit.” But when asked if Eleanor would have then claimed that Chip’s doing so violated the no-contest clause, her attorney acknowledged, “she may have.” -9- “One of the functions of pleadings in an action is to limit the issues and narrow the proofs.” Eubank v. Spencer, 203 Va. 923, 925 (1962).

2023“In the paradigm civil case, . . . []the proponent of [an] issue simply must produce evidence sufficient to support a finding on that issue[], and the burden of persuasion is proof by a preponderance of the evidence.” Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222 (1988); see also 26 C.J.S., Declaratory Judgments § 26 (2022) (“As is true in civil actions generally, the plaintiff in an action for a declaratory judgment must plead and prove facts which entitle them to the judgment sought.”).

2023Co. v. Bishop, 211 Va. 414, 421 (1970). 3 Given the parties’ contentious history, it is difficult to see how Chip could have elicited Eleanor’s position on the merits of this case without causing her to claim that he had thereby triggered the no-contest clause.