Record No: 141533
(As published by the Virginia Supreme Court)
In a declaratory judgment suit by two sons seeking a determination that their conduct did not trigger a “no contest” clause in their father’s trust instrument, alleging that the trustee’s contrary decision was without authority, contrary to the purposes of the trust and an abuse of discretion, judicial review of the trustee’s decision is allowed pursuant to Virginia jurisprudence and Code § 64.2-703(B)(2). There was sufficient evidence for the court to find that the trustee’s conclusion that the sons violated the no contest provision was not motivated by a desire to carry out the testator’s intent, or to protect the beneficiaries, and was therefore done in bad faith. The record also supports a conclusion that letters sent by the sons did not interfere with the trustee’s administration of the trust and should not have resulted in their disqualification as beneficiaries. The circuit court’s judgment finding them and their descendants rightful beneficiaries of the trust is upheld because there was no challenge to the circuit court’s primary holding that the no contest provision applied only to challenges directed against a later-amended document, while the sons’ actions were directed only an earlier instrument; therefore there was no interference with or contest to the operative testamentary document. This alternative ground remains an independent ground for the circuit court’s judgment. Accordingly, the circuit court’s judgment awarding the sons attorneys’ fees and costs is also affirmed.
