COURT OF APPEALS OF VIRGINIA

Present: Judges Athey, Chaney and Lorish

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 

PUBLISHED
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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 
- 15 -

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.