No Contest Clauses Are Strictly Construed: Hunter v. Hunter’s Discussion of the Concept

In Hunter v. Hunter (Record No. 190260), the Virginia Supreme Court devoted nearly a page of its opinion to discussing how no contest clauses in Virginia are strictly construed. Its discussion contains some new language that may prove to be helpful to litigants on this issue. In this second part of a seven-part series of blog posts on the Hunter case, we examine the implications of the Court’s discussion of this issue (note: part one of the series can be found here.

The following is the relevant portion of the opinion, which I’ve pasted verbatim:

In Virginia, we believe that the common law honors “the societal benefit of deterring the bitter family disputes that will contests frequently engender.” Keener v. Keener, 278 Va. 435, 442, 682 S.E.2d 545 (2009) (citing Womble, 198 Va. at 526-27). But we also respect the ancient maxim that “equity abhors forfeitures,” Jones v. Guaranty & Indem. Co., 101 U.S. 622, 628, 25 L. Ed. 1030 (1879), and the maxim applicable to many platforms of legal doctrine, including wills and trusts, that “provisions that require forfeiture are not favored in the law,” Rafalko v. Georgiadis, 290 Va. 384, 402, 777 S.E.2d 870 (2015). We have reconciled these competing values by stating that no-contest provisions are simultaneously “strictly enforced” and “strictly construed.” Id.

By strictly enforced, we mean that we will enforce the provision without any wincing on our part concerning its alleged harshness or unfairness — so long as the testator or settlor clearly intended the forfeiture. By strictly construed, we mean that the intent to forfeit must be very clear. The language used must “precisely express” the specific intent to cause a forfeiture. Keener, 278 Va. at 442-43. Strict enforcement cannot be justified by mere inferences of intent. As in other areas of law, a provision seeking “to sustain forfeiture is construed strictly against forfeiture,” and thus, “[t]he instrument must give the right of forfeiture in terms so clear and explicit as to leave no room for any other construction,” Davis v. Wickline, 205 Va. 166, 169, 135 S.E.2d 812 (1964); see Lewis v. Henry’s Ex’rs, 69 Va. (28 Gratt.) 192, 203 (1877) (acknowledging that a forfeiture will not be sustained “unless it be perfectly clear that the very case has happened in which it is declared that the interest shall not arise” (emphases in original) (citation omitted)). When engaged in that interpretative process, a Virginia “chancellor will not lift his hand to aid a litigant in enforcing a forfeiture.” Pence v. Tidewater Townsite Corp., 127 Va. 447, 459, 103 S.E. 694 (1920) (citation omitted). The heavy lifting must be done entirely by the unmistakable language of the drafter of the putative forfeiture provision.

The most notable thing in my mind about this discussion is the second sentence of the second paragraph, which states that in order for a trial court to enforce a no contest clause, the “intent to forfeit must be very clear” (emphasis in the original). To the best of my understanding, this is brand new language from the Virginia Supreme Court. This raises the question of whether, in Hunter, the Virginia Supreme Court has elevated the bar somewhat for the degree of precision required for the application of no contest clauses, or rather whether it merely intended to simply restate the ample case law already on the books that consistently emphasizes that point.

It seems to me that the Virginia Supreme Court is trying to send a message to trial courts that they should be exceptionally diligent in when they will apply no contest clauses, given the high degree of scrutiny that the law requires. It will be interesting to see how this point of the Hunter holding is invoked and applied in future cases.

Stayed tuned for the remaining parts of this 7-part series of blog posts on the Hunter decision. In the next post, I’ll discuss the opinion’s brief mention of the rising use of expansive no contest clauses, and some ways in which those may come before the Court in the future.

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