The Burden of Proof When Using the Alternative-Pleading Model in Hunter v. Hunter

The Virginia Court of Appeals issued an important ruling the other year that spells out the burden of proof that a plaintiff has when seeking to utilize the alternative-pleading model of Hunter v. Hunter, 298 Va. 414 (2020). Full disclosure: I litigated Hunter v. Hunter (“Hunter I”) before the Virginia Supreme Court in 2020, and I also litigated this case before the Court of Appeals in 2023. The case styling is Hunter v. Hunter, 77 Va. App. 468 (2023). I’ll refer to it here as “Hunter II.”

In Hunter II, the Court of Appeals examined a case where the plaintiff used the alternative-pleading model to bring a multiple-count complaint surrounding allegedly improper gifts. The trust at issue contained a no-contest clause, so the plaintiff utilized the alternative-pleading framework of Hunter I to first seek a ruling as to whether the later counts would fall within the scope of the no-contest clause. At the trial on Count I of the complaint (the count that sought a declaratory judgment as to whether the later counts would fall within the scope of the no contest clause), the plaintiff offered into evidence a copy of the complaint and then argued that it did not fall within the scope of the no contest clause. The defendant argued that the plaintiff needed to present evidence in support of the allegations in the complaint in order to obtain a declaratory judgment that those allegations, if true, would not violate the no-contest clause.

The trial court agreed with the plaintiff and found that the complaint would not fall within the scope of the no-contest clause. On appeal in Hunter II, the Court of Appeals agreed. The Court of Appeals held:

We disagree with [Defendant] that [Plaintiff] was required to present evidence in support of the allegations in the complaint in order to obtain a declaratory judgment that those allegations, if true, would not violate the no-contest provision. [Plaintiff’s] Exhibit 1 [the complaint] provided the trial court with sufficient information to rule on Count I. To determine whether the complaint, on its face, violated the no-contest clause, the trial court needed only to compare the two documents. [Plaintiff] provided both, satisfying his burden of production.

Id. at 480. The Virginia Supreme Court later denied the defendant’s petition for an appeal to review the decision of the Court of Appeals.

The ruling in Hunter II is a very helpful one, as now attorneys have certainty about the evidence that needs to be presented for the trial court to rule on the first part of a complaint brought under the alternative-pleading model of Hunter I.

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Where to Search for a Missing Will


I am often contacted by potential clients who insist that their relatives executed a will, but they are unable to locate it. Wills turn up in the strangest of places. The recent case of Aretha Franklin’s will is a perfect example of this. It was found underneath a couch cushion. This raises the question: where is the best place to search for a missing will? My answer is: just about every place that you can think of where a scrap of paper could be located.

This issue is especially relevant in states like Virginia that recognize the validity of holographic wills (wills entirely in the handwriting of the person making the will, and that also contain a signature or mark indicating a signature). In Virginia, a person can write a holographic will on just about anything, including in a notebook, in a diary, in a journal, on a scrap of paper, on a napkin, etc.

Whenever I speak with a client who is trying to locate a will, I recommend that they search in the following places:

Places Inside The Relative’s House

The most logical place to start is to look inside the deceased relative’s house. I’d start looking in filing cabinets and desk drawers or anywhere that important papers would be located. Next, I’d check in various drawers located throughout the house such as nightstands, filing cabinets in the basement or attic, etc.

After you’ve searched all of the “logical” places, you may need to get more creative. Next, I’d start flipping through books to see if a will may be located between pages of a book (this is especially the case with any Bibles in the house).

As you search, focus on any diaries, journals, and notebooks. A holographic will can be as simple as a note written in a diary: “I leave everything to my brother. [Signature].” This means that you need to take the time to read through all of the diary/journal/notebook entries. I realize that this could take days on end depending on how many of those the relative maintained. One thing that I’ve come across in some of my cases is the fact that it can sometimes be painful for a family member to read diary or journal entries made by a deceased family member, especially when they describe experiences of abuse or trauma. If you’re dealing with that, you can always put them aside for a few days and then come back to the task, or you can ask a different family member or friend to read through them.

If you still haven’t located a will at this point, you’ll need to get creative and start looking in places that may seem illogical. Open all of the board games and see if there’s one in those boxes. Go through all the coat pockets. Look under the couch cushions (remember Aretha Franklin’s example). Look under the dishes. Look under the lining in the dresser drawers. Check under the towels in the closet. I know it seems silly. The odds that you’ll find a will there are in fact unlikely, but once you consider the amount of money that could be at stake, you’ll realize that it’s usually a worthwhile use of time even though the odds are slim of finding a will in those unconventional places.

Places Outside The Relative’s House

If you have not located a will in the relative’s house, move your search to outside of the house. Look in any “granny cottages” or garden houses. Look in the shed. Look in the barn. Look in the outdoor toolbox. If you have any reason at all to believe that your relative ever buried items in the yard, then consider performing some minor excavation. Keep in mind that a valuable Honus Wagner baseball card was found buried in a tobacco can in a yard in the 1990s.

If your relative had a storage unit, check in that. Don’t merely check the papers in the storage unit; rather, go through the actual boxes and flip through the pages of books. Also, check the vehicles and any boxes or items in those vehicles.

Also, contact the relative’s advisors such as their attorney, financial advisor, insurance agent, etc. The attorney could have a copy on file, or other advisors may have some leads on where it could be located. If you don’t know who their attorney is, feel free to place some calls to, or write letters to, estate planning attorneys in the area. In my experience, numerous estate planning attorneys will often respond to those types of inquiries.

Additionally, you should search your relative’s office at their place of work. I’ve found that a number of people keep a copy of their will at the office due to a concern about their house burning down (and their will being burned along with it). Other people keep copies of their will at their office so that their spouse or other relatives won’t be able to view it. Some people find themselves in situations where they wish to disinherit, or largely disinherit, a relative without the relative finding out. In such cases, they prefer to keep their will hidden from that relative by storing it at their office.

If You Still Can’t Find The Will

If you’ve searched in all of these places and can’t locate a will, I wouldn’t give up all hope just yet. Virginia law does not have a time deadline by which a will needs to be probated. So, if you find one a good bit later in time, you can still have it admitted to probate (though this does create numerous challenges relating to the status of assets that may have already been distributed). Once you get down to the task of cleaning out your relative’s house and property, it could still turn up.

What do you do if you’re virtually certain that your relative had a will but you still can’t locate it after an extensive search? In that case, you may need to consider the fact that it could have been destroyed. Maybe it was destroyed by the relative who made it or by another family member who found it before you (and who wasn’t treated favorably in the will). I have a working theory that I’ll never be able to prove, but experience and instinct tell me is true: there are quite a large number of wills that are first found by family members who are not provided for in them and who, in turn, destroy those wills and never tell anyone. I can’t prove this, but I think it definitely happens somewhat frequently based on the number of clients who swear to me that their relative had a will but they can’t locate it after an extensive search.

Let me sum up this blog post with the following observation: the thought of searching through your relative’s entire house, papers, possessions, etc., may seem like a daunting task given the time it would take, but given what could be a stake, it’s almost always worth the investment in time and energy. Good luck.

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Virginia’s Harmless Error Rule May Permit a Will that Doesn’t Meet the Conventional Formalities to be Probated

Virginia has a version of the “harmless error rule” that may permit a will to be probated even if it does not strictly comply with the conventional formalities required for a writing to constitute a valid will.

Traditionally, Virginia, like most states, required all wills to strictly comply with the legal requirement rules set forth in the code for when a writing can constitute a valid will. Any deviation, even if minor, usually meant that clerks and courts would not admit the will to probate as a valid will. That often led to some harsh results.

Gordon & Rees Estate and Trust Litigation practice group In 2007, the Virginia General Assembly adopted the precursor to what is now Virginia Code Section 64.2-404. The current law is based on a provision contained in the Uniform Probate Code referred to as the “Harmless Error” Rule (Section 2-503). Virginia’s provision is a bit more restrictive than the provision in the Uniform Probate Code, but it nonetheless significantly relaxes the traditional requirements for what constitutes a valid will under Virginia law.

Conventional Formalities

Before we examine the law, let’s look at the conventional formalities. Under Virginia Code Section 64.2-403, a will has to fall within one of two categories in order to constitute a valid will under the conventional formalities:

(1) it’s (a) in writing, (b) signed by the testator (the person making the will) or another person in the testator’s presence and by his direction, in a manner as to make it manifest that the name is intended as a signature, and (c) the testator’s signature is acknowledged by at least two competent witnesses who are present at the same time and who sign the will in the presence of the testator;


(2) it’s entirely in the testator’s handwriting and signed by him, and the handwriting and signature are proved by at least two disinterested witnesses.

Harmless Error Rule

The Harmless Error Rule, in Virginia Code Section 64.2-404, relaxes the conventional formalities. It provides:

A. Although a document, or a writing added upon a document, was not executed in compliance with § 64.2-403, the document or writing shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

B. The remedy granted by this section (i) may not be used to excuse compliance with any requirement for a testator’s signature, except in circumstances where two persons mistakenly sign each other’s will, or a person signs the self-proving certificate to a will instead of signing the will itself and (ii) is available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent’s date of death and in which all interested persons are made parties.

Under this code section, litigants have a much easier task when it comes to trying to establish a writing as a valid will. It relaxes almost all of the conventional requirements with the exception of the requirement that the writing contain the testator’s signature.

In exchange for the relaxed legal requirements, the proponent of the will has to satisfy some additional hurdles. The proponent has a burden of proof of “clear and convincing” evidence, compared to the normal lower standard of a “preponderance” of the evidence. Also, the proponent has to bring a court proceeding within one year from the decedent’s passing and name all interested parties in that proceeding.

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Appeals from the General District Court

Because Virginia General District Courts are not courts of record, there is little literature or case law surrounding jurisdictional issues in these Courts. Questions regarding the jurisdictions of appeals from General District Courts to Circuit Courts are sometimes difficult to answer. Most General District Court cases can be appealed to Circuit Court pursuant to Virginia Code § 16.1-106, and those appeals are heard de novo (i.e. the Circuit Court looks at the case with a clean slate as if it had never before been heard). However, where a General District Court case is dismissed on a jurisdictional motion by the Defendant, the Circuit Court may not be able to hear the appeal at all.

In 2011, the Virginia Supreme Court heard a case with the following procedural history: Fairfax County brought a case in General District Court and won against the Defendant. The Defendant appealed to the Fairfax Circuit Court, and the County then non-suited the case pursuant to Virginia Code § 8.01-380 (a non-suit is a one-time dismissal of right that allows the claimant to re-file the case at a later time). Davis v. County of Fairfax, 282 Va. 23, 710 S.E.2d 466 (2011). The County then re-filed their claim in General District Court, which ruled it did not have jurisdiction due in part to the provision in Virginia Code § 8.01-380 that states that “[a]fter a nonsuit no new proceeding on the same cause of action or against the same party shall be had in any court other than that in which the nonsuit was taken, unless that court is without jurisdiction, or not a proper venue, or other good cause is shown.” The County appealed, and the Circuit Court, hearing the matter de novo, ruled in favor of the County. The Defendant appealed all the way to the Supreme Court, asserting that the Circuit Court did not have jurisdiction to hear the second appeal because the matter was re-filed in the improper court (i.e. the County should have re-filed in the Circuit Court).

The Supreme Court agreed with the Defendant. It noted that the jurisdiction of the appellate court on appeal from the General District Court is derivative, and if the General District Court had no jurisdiction, the appellate court acquires none on appeal. This is so even though the Circuit Court would have had jurisdiction to hear the case had the case properly been filed in the Circuit Court. “[A]n appeal is a mere continuation of the original case … The want of jurisdiction of the subject matter in the court where the action was brought, continues in every court to which the action may be appealed, for the reason that it is the same action, and an appeal is authorized only where the court from which the appeal is taken, in case of the failure to appeal, would have had authority to enforce its judgment.” Davis.

Certain claims regarding trusts and estates must be brought in particular courts, and some need to be brought in Circuit Court. Thus, when questions of jurisdiction arise in General District Court, individuals with trust/estate claims should be aware of jurisdictional issues and the implication of a dismissal on jurisdictional grounds. This is especially so when questions of statutes of limitations arise. Under normal circumstances, appeals from the General District Court to the Circuit Court will not interrupt the statute of limitations of a claim because the appeal is merely a continuation of the claim and there is an unbroken chain of litigation. However, where the General District Court dismisses on jurisdictional grounds, ruling that another tribunal has jurisdiction, no appeal will lie from the General District Court, and the matter must be brought anew in the new tribunal. If the statute of limitations for any of the claims brought in General District Court expired during the interim period, those claims may be barred when filing in the new tribunal. Claimants should carefully analyze jurisdictional issues and relevant statutes of limitations when analyzing whether to bring a matter first in General District Court or in Circuit Court.

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Statute of Limitations for Breach of Fiduciary Duty Actions

The statute of limitations for breach of fiduciary duty in Virginia is two years. Colgate v. Disthene Grp., Inc., 86 Va. Cir. 218 (Va. Cir. 2013); see Virginia Code §§ 8.01-243, 248.  However, Virginia Code § 8.01–229(D) tolls the statute of limitations where a defendant obstructs the filing of an action.  To prevail on this argument, a plaintiff must allege that the defendant “undertook an affirmative act designed or intended, directly or indirectly, to obstruct [the plaintiffs’] right to file [their] action.” Newman v. Walker, 270 Va. 291, 298, 618 S.E.2d 336 (2005). A defendant must intend to conceal the discovery of the cause of action by “trick or artifice” and must have actually concealed it from the plaintiff for the statutory tolling to apply. The concealment cannot be passive.  Thus, in an estate context, if a claimant can show that a trustee/estate administrator actively blocked a claimant’s ability to file suit, the statute of limitations may be extended.

Virginia has one other statute of limitations savings clause: Virginia Code § 8.01–249(1), which states that, in actions for fraud or mistake or to rescind a contract for undue influence, the claim accrues when the fraud, mistake, misrepresentation, deception, or undue influence is discovered or by the exercise of due diligence reasonably should have been discovered.  However, multiple courts in Virginia have ruled that this so-called discovery rule does not apply to breach of fiduciary duties because the Virginia code explicitly lays out the causes of action subject to the discovery rule, and breach of fiduciary duty is not one of those enumerated categories.  As such, the Virginia General Assembly has specifically excluded breach of fiduciary duty from the scope of the discovery rule. See Jones v. Shooshan, 855 F.Supp.2d 594, 602–603 (E.D.Va.2012); Colgate, supra.

In the context of Estate and Trust litigation, estate administrators/executors and trustees owe fiduciary duties to the estate/trust and the beneficiaries.  If a beneficiary suspects a breach of the fiduciary duty, it is imperative that the beneficiary thoroughly investigate the possible wrongdoing and bring suit within two years of the alleged act of wrongdoing.  If the beneficiary fails to do so, she could waive her ability to bring a claim for breach of fiduciary duty.

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2022 Year in Review for Trust and Estate Disputes

In today’s blog post, I discuss a few notable developments from this past year in the field of trust and estate disputes.

New Standard For Undue Influence In Will Contest Cases

First, probably the most notable development from this past year is that Virginia’s General Assembly adopted a law that provides for a new standard for undue influence in will contest cases. Senate Bill 554 added a new provision to the Virginia Code in Section 64.2-454.1. I wrote a lengthy blog post this past summer on the bill (which blog post can be found here), so I won’t repeat myself in this post. But I do have some observations to make now that the new law has been in effect for a few months.

Some estate planning attorneys opposed the new law because they were concerned that it could lead to a “wave” of new will contest lawsuits. In short, that has not happened. My team and I have filed quite a number of will contest lawsuits since the new law went into effect this past July, and we unquestionably would have filed all of them even if the old standard was still in place. The new law is certainly helpful to litigants seeking to overturn a will on the basis of undue influence, but as I pointed out in my earlier blog post, the new law is hardly a silver bullet. In fact, it does nothing to help a litigant who is contesting a will on some ground other than undue influence, and it also arguably does nothing to help a litigant who is concurrently contesting the validity of a trust.


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Legal Standing to Contest Inter Vivos Transactions in Virginia

In Virginia, a person has legal standing to contest an inter vivos transaction (a transaction made during the life of a person who is now deceased) when the person is the executor or administrator of the deceased person’s estate, or when certain legal exceptions apply. In this blog post, we analyze those exceptions and the state of Virginia law on this issue.

Background to the Issue

After a relative or friend passes away, a person may want to contest certain transactions that the deceased person made during their life (referred to as “inter vivos” transactions). Examples of inter vivos transactions that a person may want to contest include beneficiary designations, account titlings, gifts, conveyances of real estate, and transactions using a power of attorney. The person may want to contest these transactions on the grounds that the deceased person lacked the required capacity to enter into the transaction, or was unduly influenced or defrauded into making the transaction.


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Virginia Has A New Standard For Undue Influence In Will Contest Cases

Beginning July 1, 2022, Virginia has a new standard for undue influence in Will contest cases. For most Will contest cases in Virginia, the standard for undue influence will now involve a presumption that undue influence was exerted over the decedent (the deceased person). This is a profound change from the current (pre-July, 2022) state of the law (which merely created a temporary presumption that was extremely easy to overcome), and it will make it much easier to contest the validity of a Will in Virginia.

Text of the New Law

In the 2022 session, the General Assembly adopted Senate Bill 554, which adds a new section to the Virginia Code, which will be contained in Section 64.2-454.1., and will be titled: “Will contest; presumption of undue influence.”

The text of the bill states as follows:

In any case contesting the validity of a decedent’s will where a presumption of undue influence arises, the finder of fact shall presume that undue influence was exerted over the decedent unless, based on all the evidence introduced at trial, the finder of fact finds that the decedent did intend it to be his will.


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When Does a Trust Become Irrevocable? At the Settlor’s Death, or Upon the Settlor’s Loss of Capacity? Hunter v. Hunter’s Discussion of the Concept

This post is part 7 in our 7-part series on the Virginia Supreme Court’s ruling in Hunter v. Hunter (Record No. 190260). Today we focus on the opinion’s discussion of the issue of when a trust becomes irrevocable. Is it upon the death of the settlor (the person who created the trust)? Or at the time when the settlor loses the capacity to revoke the trust? You can find parts 1-6 of the series at the following links: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6.

For better or for worse, the Virginia Supreme Court did not decide that question in Hunter. Instead, it discussed the alternative viewpoints but declined to rule on the specific issue. The following is a summary of the Court’s discussion.


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Must a Will/Codicil be Signed?: Virginia Court Finds an Unsigned Codicil to be Valid

By recent letter opinion in the matter of In re George William Estate of Asmuth, the Fairfax Circuit Court held that an unsigned codicil was indeed valid under Virginia Code Section 64.2-404. The letter opinion, while not binding authority across all of Virginia, provides an instructive analysis and look at the legal framework for resolving a relatively common estate dispute scenario: whether a codicil/will which is unsigned is of any legal validity. My colleague Will Sleeth previously wrote an instructive blog post on this topic.

The facts of the case were that a testator (will-maker) (“George”) died in 2021. George signed a Will in 2018, which was admitted to probate in 2021 after his passing. There was, however, another document signed after the 2018 Will which purported to be a Codicil. The Codicil was not signed but George typed his name on the document. The Codicil also includes witness and notary certification pages, which were signed and completed.


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