Keener v. Keener

Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.

DEBRA KEENER OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 082280 September 18, 2009

HOLLIS GRANT KEENER, JR., ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William D. Hamblen, Judge

This appeal presents a question of first impression,

involving the construction and effect of a forfeiture clause

contained in an inter vivos trust. The trust itself was the

sole beneficiary under a will.

Facts and Proceedings

Hollis Grant Keener (the testator), a widower residing in

Prince William County, died on August 7, 2007, survived by his

seven children, Hollis G. Keener, Jr. (Hollis), Thomas C.

Keener (Thomas), Brenda Anne Collier (Brenda), Deborah Louise

Keener (Debra), 1 Robin Wanda Peer (Robin), Joyce Sue Purks

(Joyce), and Clark Allen Keener (Clark). More than four years

before his death, the testator consulted an attorney

specializing in estate planning, who prepared a “pour-over”

will that left all the testator’s property to the “Hollis

Grant Keener Revocable Living Trust” (the trust). The will

1
The testator spelled this daughter's name “Deborah” in
his will and trust. She, however, used the spelling “Debra”
throughout this litigation.
named the testator’s eldest son, Hollis, as executor. The

will and the trust were both executed on February 1, 2003.

The trust was to become effective immediately. It

designated the testator as sole trustee during his lifetime,

with his son Hollis as first successor trustee and his son

Thomas as second successor trustee. The trust instrument

described its purpose:

The purpose of this Trust is to reduce or
eliminate probate costs to the extent possible while
maintaining complete control of my assets. I wish
to also ultimately distribute my estate to members
of my family in a prompt, orderly and private
manner.

Specifically, I wish to provide for my support,
comfort and well-being while I am alive and then to
pass along my estate to my children, HOLLIS GRANT
KEENER, JR., THOMAS C. KEENER, BRENDA ANNE COLLIER,
DEBORAH LOUISE KEENER, ROBIN WANDA PEER, JOYCE SUE
PURKS, AND CLARK ALLEN KEENER, if living.

The trust provided that if all of the testator’s children

should survive him, the trust would terminate at his death and

all its assets would be distributed to them in equal shares,

“[e]xcept as may be provided by an addendum to this Trust.”

On the same date the testator executed his will and trust, he

also executed four addenda to the trust. The first of these

specified the powers of the trustee, the second transferred

all the testator’s personal property to the trust, except for

items requiring a certificate of title, the third transferred

the testator’s automobile to Hollis at the time of the

2
testator’s death, and the fourth provided that the shares of

Robin and Clark should not be distributed to them upon the

testator’s death, but were to continue to be held in trust for

them during their lifetimes. The trustee was given power to

distribute principal and interest to those children from their

shares, in his sole discretion, for their health care,

education, support and maintenance.

In 2005, the testator executed a fifth addendum 2 providing

that upon his death, Clark’s share and Robin’s share would be

first applied to the repayment of certain bank loans made to

them before they received any distribution from the trust, and

that Joyce’s share would be first applied to the repayment of

a loan the testator had made to her before she received any

distribution from the trust.

In early March 2007, Hollis, who lived in Delaware,

visited his father, who was then living with Brenda and her

husband in their home in Manassas. When Hollis arrived, he

found Debra engaged in an argument with Brenda. In the

presence of their father, Debra was examining a portfolio of

papers containing their father’s will and trust documents.

She left the house with these papers, had copies made of them,

and returned the original papers. The children’s testimony as

2
It was erroneously captioned “Addendum Four."

3
to the details of their dispute varied, but the disagreements

among them became so heated that by the time of their father’s

death five months later, Debra was on speaking terms with only

one of her siblings.

Within a few weeks after this unpleasantness, the

testator executed a final addendum to his trust that provided:

At my death:
1. Any person that objects to or contests any
provision of this Trust, in whole or in part, shall
forfeit his or her entire distribution otherwise
payable under this Trust and receive only $1.00
under this Trust and will receive no other
distribution from my Trust nor from my estate.

This language was confined to the trust; the testator’s will

did not contain a forfeiture or no-contest provision.

At the time of the testator’s death, the original will

was in Hollis’ possession in Delaware. He did not offer it

for probate because he thought probate was unnecessary,

explaining that “the Will was referring everything to the

Trust.” He told his siblings that “there really was no Will”

and that the will “referred everything to the Trust.” He

later testified that he thought “[t]he only thing I was going

to do was get the money, disburse it, call it a day, and I was

done.”

Debra went to the clerk’s office of the Circuit Court of

Prince William County to ascertain whether her father’s will

had been offered for probate. Finding no such record, she

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attempted to offer for probate the copy of the will she had

made in March, but was informed that the original will was

necessary. Debra had no communications with Hollis, but she

later testified that Brenda and Thomas both told her that

“[t]here is no Will.”

On October 15, 2007, Debra applied to the clerk of the

circuit court for administration of her father’s estate,

making oath that he had died intestate. The clerk entered an

order appointing her administratrix and authorizing issuance

of letters of administration to her.

On October 18, 2007, Hollis sent a memorandum to his six

siblings making a partial disbursement to them of the funds in

the trust. In accordance with the addenda to the trust, he

deducted from the checks sent to Joyce and Clark the loans the

testator had mentioned. Learning of Debra’s qualification as

administratrix before her check had cleared the bank, Hollis

stopped payment on it on the ground that she had forfeited her

entire interest in the trust by violating the no-contest

provision in the last addendum to the trust.

Hollis, Thomas and Brenda (the petitioners) brought this

suit by filing a petition in the circuit court exhibiting the

testator’s original will and asking for its admission to

probate. The petition named the remaining four children as

defendants and asked the court to remove Debra as

5
administratrix and to appoint Hollis as personal

representative of the estate. The petitioners alleged that

Debra’s acts amounted to a contest of the provisions of the

trust. Debra filed an answer in which she stated that if a

properly executed original will were produced, she would have

no objection to its admission to probate and would “cooperate

in correcting the probate records” to change the fiduciary in

accordance with the provisions of the will.

Debra’s answer was accompanied by a counterclaim alleging

that Hollis and Thomas had breached their fiduciary duties as

successor co-trustees under the trust by wasting trust assets,

concealing assets from some beneficiaries while favoring

others, and failing to account for their acts. She asked the

court to order them to make full disclosure of the facts, to

render an accounting and to reimburse the trust for all costs,

waste and damages the court might find that the trust had

incurred.

Debra later filed an amended counterclaim alleging

additional wrongful acts committed by Hollis and Thomas and

asking for their removal as co-trustees or, alternatively, for

subjecting them to the supervision of the commissioner of

accounts. The petitioners answered, accusing Debra of fraud,

perjury, unclean hands, and estoppel by her “wrongful conduct”

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in incurring the expense of litigation by opening

administration of the estate as intestate. 3

After hearing the evidence ore tenus, the circuit court

ruled that the will would be admitted to probate by agreement

of all the parties, which would have the effect of terminating

the authority of Debra to act as administratrix. The court

denied the petitioners’ request for attorney’s fees but

otherwise substantially granted the relief asked by the

petitioners. 4

Turning to Debra’s counterclaim and affirmative defenses,

the court ruled that her action in qualifying as

administratrix was, in effect, a contest of all the provisions

of the trust because, if it had been successful, it would have

resulted in the distribution of all assets remaining in the

testator’s ownership at the time of his death directly to his

statutory heirs at law, and not to the trust as provided for

3
Although Debra's counterclaim may be said to have
contested the trust's provisions by demanding the removal of
Hollis and Thomas as co-trustees, the petitioners never argued
that point at trial and that issue cannot be raised for the
first time on appeal. Furthermore, the petitioners did not
present that issue by an assignment of cross-error, and it is
thus not before us. Rule 5:18(b).
4
Because the petitioners assigned no cross-error to the
court's ruling respecting attorney's fees, that issue is not
before us. Rule 5:18(b).

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in his will. 5 The court ruled that Debra's conduct triggered

the forfeiture clause in the final addendum to the trust, that

she had thereby forfeited her interest and therefore had no

standing to assert any claim against the trustees. The court

entered a final order dismissing Debra’s counterclaim,

admitting the will to probate, appointing Thomas as personal

representative of the testator’s estate 6 and dismissing the

case with prejudice. We awarded Debra an appeal.

Analysis

The question whether a no-contest clause in a will has

been triggered presents, on appellate review, 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.” Womble v. Gunter, 198 Va. 522, 529,

95 S.E.2d 213, 219 (1956). Accordingly, we accord deference

to the circuit court’s findings of historical fact, but review

questions of law de novo. Luria v. Board of Dirs. of

Westbriar Condo. Unit Owners Ass'n, 277 Va. 359, 365, 672

S.E.2d 837, 840 (2009). In the present case, although many

5
It was undisputed that, although the testator had
transferred many of his assets to the trust during his
lifetime, assets not yet transferred still remained in his
name at the time of his death.
6
Hollis had declined to serve.

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facts are in dispute, none that are material to this appeal

are disputed. It is not disputed that Debra opened

administration of her father’s estate as intestate. The only

question presented on appeal is whether that act triggered the

no-contest clause in the trust. That question involves

applying the language of a written document to an undisputed

fact, which we treat as a pure question of law, subject to

review de novo on appeal. Jones v. Brandt, 274 Va. 131, 135,

645 S.E.2d 312, 314 (2007).

In Womble, after reviewing decisions from many

jurisdictions, we decided to adopt the rule that a no-contest

provision in a will should be strictly enforced according to

its terms, even, in that case, against infants who were

parties to the contest and even, in that case, where the

application of the clause had the effect of disinheriting all

the members of the testator’s family. Womble, 198 Va. at 532,

95 S.E.2d at 220-21. The compelling reasons for such strict

enforcement of the testator’s language are the protection of a

testator’s right to dispose of his property as he sees fit,

and the societal benefit of deterring the bitter family

disputes that will contests frequently engender. Id. at 526-

27, 532, 95 S.E.2d at 217, 220-21.

A preliminary question, of first impression in Virginia,

is whether the same principles we apply to a no-contest clause

9
in a will should apply with equal force to such language

appearing in a trust that constitutes a part of a decedent’s

testamentary estate plan. In the present case, the sole

purpose of the testator’s will was to fund the trust. The

trust expressed his entire plan for the distribution of his

property after his death. If the trust had not been in

effect, there would have been no reason to offer the will for

probate. Although the terms of the trust originally

contemplated that it would terminate upon the testator’s

death, resulting in a prompt equal distribution of his

property to his children, addenda the testator created during

his lifetime extended the trust's operation into the

indefinite future. Because the testator relied on the trust

for the disposition of his property, we consider it

appropriate to give full effect to no-contest provisions in

such trusts for the same reasons that support the enforcement

of such provisions when they appear in wills.

We now turn to the dispositive issue on appeal: Whether

Debra’s acts in opening intestate administration of her

father’s estate triggered the no-contest provisions of the

trust. No-contest provisions are strictly construed for two

reasons. First, the testator, or a skilled draftsman acting

at his direction, has the opportunity to select the language

that will most precisely express the testator's intent. See

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Womble, 198 Va. at 531-32, 95 S.E.2d at 220-21. Second,

provisions that work a forfeiture are not favored in the law

generally and will not be enforced except according to their

clear terms. See Trailsend Land Co. v. Virginia Holding

Corp., 228 Va. 319, 323-24, 321 S.E.2d 667, 669 (1984).

Applying those principles, we conclude that Debra’s acts

did not bring her within the trust’s language: “Any person

that objects to or contests any provision of this Trust, in

whole or in part, shall forfeit his or her entire distribution

. . . .” With the exception of her request for the removal of

trustees, an issue not presented on appeal, Debra made no

objection to, or contest of, any provision of the trust. The

circuit court questioned whether she had reason to believe

there was an unrevoked original will in existence when she

acted to open administration of the estate, but the court made

no express finding on that subject. It sufficed for the court

that Debra’s action, if successful, would have thwarted the

testator’s purpose of funding the trust through the will.

That purpose, however, was not a provision of the trust and

the will contained no forfeiture provision. The testator

could, if he so desired, have included, either in his will or

in the trust, language broad enough to include the acts

complained of by the petitioners, but did not choose to do so.

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 Conclusion

We conclude that the circuit court erred in holding that

Debra’s act in opening administration of the estate brought

her within the forfeiture clause of the trust, and that she

therefore lacked standing to pursue the claims asserted in her

amended counterclaim. Accordingly, we will reverse the

judgment of the circuit court and remand the case for further

proceedings with respect to the said counterclaim, consistent

with this opinion.

Reversed and remanded.

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