Virginia has long recognized and enforced “no contest” clauses for Wills in probate, but the Court of Appeals of Virginia recently refused to adopt a good faith and probable cause exception to no contest clauses. No contest clauses are strict provisions designed to deter bitter family disputes during probate. This exception would allow a beneficiary of a Will to challenge the validity of the Will without waiving the beneficiary’s interests under the Will.
The Virginia Supreme Court acknowledged the public policy argument underlying the exception: “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.” Womble v. Gunter, 95 S.E.2d 213, 216 (Va. Ct. App. 1956). However, in Butler v. Stegmaier, the Virginia Court of Appeals ruled that since “there is no statutorily created good faith and probable cause exception,” it is ultimately “the role of the General Assembly to evaluate and adopt or discard particular public policy changes.” 88 S.E.2d 806, 815 (Va. Ct. App. 2023). The Court acknowledged that thirty-six other states recognize an exception for good faith and probable cause, but it noted that most of those states do so by statute. Id.
The Butler opinion makes the enforceability of no-contest clauses even stricter in Virginia. If a beneficiary seeks to contest a Will, they must be willing to lose their interest in the Will. Even with good faith and probable cause, a beneficiary cannot overcome a properly worded no-contest clause in Virginia.
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