884 S.E.2d 806
Va. Ct. App.2023Background
- Decedent William Helton executed three wills: 2012 (favorable to Butler and Kalle), 2016 (reduced gifts; named Martha beneficiary), and 2017 (further reduced Butler to $10,000, made Martha residuary beneficiary and executor, added a no-contest clause and survivorship/joint Bank of America accounts titled to Martha).
- After Helton died in 2017, the Circuit Court admitted the 2017 will to probate; Martha qualified as executor and Butler sued to impeach the 2017 will, admit the 2012 will, set aside joint/pay-on-death bank designations, obtain rescission and attorney fees, and assert undue influence.
- At trial, the court permitted an expert (Nelson) to testify for Martha; Butler later moved (post-rest) to strike that testimony for admissibility defects, and the court denied the late objection as untimely.
- The court allowed cross‑examination about Butler’s "live‑in" girlfriends; Martha’s renewed motion struck Butler’s claim to the Bank of America accounts; the jury upheld the 2017 will; the court held Butler violated the will’s no‑contest clause and revoked his $10,000 bequest.
- Butler’s claim for rescission and statutory attorney fees under Va. Code § 8.01‑221.2 was demurred; the court sustained the demurrer. Butler appealed; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Butler) | Defendant's Argument (Stegmaier) | Held |
|---|---|---|---|
| Timeliness of striking expert testimony | Objected to Nelson's foundation/methods but moved to strike after she was excused; argues admissibility flaws warranted striking | Objection was untimely because admissibility objections must be made when testimony is offered | Court: objection waived; motion to strike on admissibility grounds was untimely; denial affirmed |
| Questions about Butler’s "live‑in" girlfriends | Such questions were irrelevant and unfairly prejudicial | Evidence could tend to explain Helton’s reasons for reducing Butler’s bequest; probative value outweighs prejudice | Court: admissible and within discretion; no abuse found |
| Strike claim to Bank of America joint/POD accounts | Butler sought to set aside survivorship/POD designations | Martha argued survivorship and residuary receipt via will would make claim moot | Court: even if striking was error, any error harmless because Martha would receive funds via residuary under valid 2017 will |
| Good‑faith/probable‑cause exception to no‑contest clause | Courts should recognize an exception (majority rule/statutory trend) so good‑faith challenges do not forfeit benefits | Virginia has no statutory/common‑law exception; Womble and related authority support strict enforcement | Court: declines to create exception; enforces clause and disinherits Butler for bringing contest |
| Demurrer to rescission and attorney fees under Va. Code § 8.01‑221.2 | A will is an "other instrument" and § 8.01‑221.2 permits fees if obtained by undue influence/fraud | Statute applies only to civil actions to rescind; impeachment of a will under probate statutes is not equitable rescission | Court: demurrer sustained; statute does not apply to will impeachment and jury found no undue influence, so fees unavailable |
Key Cases Cited
- Bitar v. Rahman, 272 Va. 130 (2006) (objections to expert testimony on admissibility grounds must be timely or are waived)
- Vasquez v. Mabini, 269 Va. 155 (2005) (an objection made at first opportunity after flaws become apparent can be timely)
- Countryside Corp. v. Taylor, 263 Va. 549 (2002) (distinguishes admissibility objections from sufficiency motions to strike)
- Womble v. Gunter, 198 Va. 522 (1956) (discusses policy for and against recognizing a good‑faith/probable‑cause exception to no‑contest clauses)
- Hunter v. Hunter, 298 Va. 414 (2020) (no‑contest clauses are strictly enforced and strictly construed under Virginia law)