Hunter v. Hunter, Trustee, 838 S.E.2d 721 (Va. 2020): A valuable contribution to in terrorem/no-contest jurisprudence in the context of trusts

Charles E. Rounds, Jr.
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Justice D. Arthur Kelsey’s opinion in the 2020 Virginia case of Hunter v. Hunter, as Trustee of the Third Amended and Restated Theresa E. Hunter Revocable Living Trust, is a tour de force, on a par with decisions authored by the likes of Justice Horace Gray (1828-1902) and other such scholar-jurists of years long gone by. Gray’s Jackson v. Philips, 96 Mass. 539 (1867), particularly comes to mind. Thorough, clear, concise, jurisprudentially contextual, jargon-free, and rock solid when it comes to applying the common law as enhanced by equity, Kelsey’s opinion masterfully and efficiently--efficiency of language was not Gray’s strong point--lays out the past, present, and likely future state of the law when it comes to the enforceability of in terrorem/no-contest clauses in trust instruments. Such clauses are covered generally in §5.5 of Loring and Rounds: A Trustee’s Handbook [pages 438-445 of the 2020 Edition]. The relevant portions of the section are reproduced in the appendix below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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