Preserving Evidence in Virginia Will Disputes: Lessons from Davis v. Christy
Date: April 22, 2026
Understanding the Law of Spoliation in Virginia
Virginia law requires any person to preserve evidence that may be relevant to foreseeable future litigation. In the context of a will contest, this means that, if a person anticipates that there might be a lawsuit challenging a will, that person must ensure not to delete or discard any documents, communications, or information that could be related to the contest.What the Davis v. Christy Decision Means for Virginia Litigants
As the Virginia Court of Appeals explained in the recent case of Davis v. Christy, Virginia Courts have two options when a party destroys evidence that should have been preserved. If a Court finds that the party failed to take reasonable steps to preserve the evidence, the Court can take steps to correct any prejudice to the other party. For example, the Court could limit certain types of testimony, arguments, or evidence in order to level the playing field.However, if the Court finds that the party destroyed the evidence recklessly or intentionally, the Court can allow an “adverse inference” whereby the jury is allowed to assume that the missing evidence would implicate the party that lost the evidence.
In Davis v. Christy, one party failed to preserve text messages and videos after replacing their phones. The trial court found that litigation was foreseeable, but that there was no reckless or intentional spoliation. The trial court decided to permit the jury to hear arguments about the deletions, but that there could not be an adverse inference.
The Virginia Court of Appeals upheld this decision, emphasizing that the remedies were appropriate and necessary to address the prejudice caused by the missing text messages. The ruling underscores the importance of evidence preservation.
Why Spoliation Matters in Will Contests
The principles of evidence preservation take on heightened importance in estate litigation, where the stakes often involve family dynamics, significant assets, and competing narratives about a decedent’s true intentions. Will contests involve not only the document itself, but also the broader context in which it was created: who communicated with the decedent, what drafts may have existed, and whether anyone exerted undue influence. Because questions of capacity, undue influence, or fraud frequently turn on subtle details, preserving all materials that shed light on the decedent’s state of mind and relationships is essential. Even seemingly minor communications can become pivotal when a dispute emerges.Electronic Evidence and the Fragility of Digital Records
In modern will contests, electronic evidence plays an especially critical role. Drafts of estate planning documents stored on computers, text messages between the decedent and beneficiaries, emails with advisors, and even voicemail messages may provide valuable insight into the decedent’s intent. Yet these forms of evidence are also the most fragile. Automatic deletion settings, software updates, cloud storage policies, and normal device replacement can all result in the loss of potentially relevant information. Litigants often underestimate how quickly electronic data can disappear, creating significant challenges when the authenticity or validity of a will later comes into question.Failure to preserve such materials can expose parties to allegations of spoliation, which carry serious consequences in estate litigation. Courts may limit a party’s ability to present certain arguments or evidence, permit opposing counsel to highlight the missing materials to the jury, or, when the destruction appears intentional or reckless, allow an adverse inference that the missing evidence would have been unfavorable. For these reasons, individuals involved in potential estate disputes should take proactive steps to secure all relevant communications and documents as soon as litigation becomes reasonably foreseeable.
How to Preserve Evidence in a Virginia Estate Dispute
If you believe a will contest or other estate dispute may arise, acting quickly to preserve evidence can make the difference between a strong case and a weakened one. As soon as litigation becomes reasonably foreseeable, Virginia’s duty to preserve evidence attaches. Practical steps to take include:- Text messages and voicemails with the decedent, advisors, or other beneficiaries. Back these up before trading in or replacing phones.
- Emails and email attachments, including drafts of estate planning documents and correspondence with attorneys, financial advisors, and caregivers.
- Drafts and prior versions of the will, trust, or beneficiary designation forms, whether stored on personal devices, in cloud storage, or with the drafting attorney.
- Calendars, journals, and medical records that may shed light on the decedent’s capacity, routine, or relationships during the relevant period.
- Social media messages, direct messages, and posts that reflect communications with or about the decedent.
- Financial records, bank statements, and transaction histories, particularly those involving accounts with payable-on-death or transfer-on-death designations.
Where possible, suspend automatic deletion settings on email accounts and messaging apps, and consider issuing a written litigation hold to family members or third parties who may hold relevant records. When in doubt, consult counsel before discarding anything that might be relevant. The cost of over-preserving is almost always lower than the cost of a spoliation finding.
Frequently Asked Questions About Preserving Evidence
What is spoliation of evidence in Virginia?Spoliation is the destruction, alteration, or failure to preserve evidence that may be relevant to foreseeable or pending litigation. Under Virginia law, including § 8.01-379.2:1, parties and potential parties must preserve relevant evidence once litigation is reasonably anticipated; courts may impose curative measures and, for reckless or intentional spoliation, adverse-inference instructions.
What happens if someone destroys evidence in a Virginia will contest?
If a Virginia court finds that a party failed to take reasonable steps to preserve evidence, it can impose measures to correct any prejudice to the other side. For example, by limiting testimony or arguments. If the destruction was reckless or intentional, the court can go further and allow an adverse inference, meaning the jury may assume the missing evidence would have been unfavorable to the party who destroyed it.
What is an adverse inference in Virginia?
An adverse inference is a jury instruction or finding that permits a factfinder to assume that missing or destroyed evidence would have been harmful to the party responsible for its loss. In Virginia, adverse inferences are available only when the court finds the spoliation was reckless or intentional, not merely negligent.
When does the duty to preserve evidence begin in Virginia?
The duty to preserve attaches when litigation is reasonably foreseeable, not just when a lawsuit is filed. In the estate context, that may be the moment a family member raises concerns about a will, capacity, or undue influence, or when an attorney sends a preservation demand. Waiting until a complaint is served is too late.
If you are facing an estate dispute in Virginia, including a question about how to preserve evidence or concerns that others may be destroying valuable evidence, you should promptly consult with experienced trust and estate dispute counsel.
About Our Team
Whiteford offers sophisticated, experienced counsel on estate, trust, and fiduciary dispute matters, including will contests, challenges to beneficiary designations, and pay-on-death and transfer-on-death designation disputes.
When a will contest is on the horizon, the stakes are personal and the legal questions are complex. Whiteford’s Estates, Trusts, & Fiduciary Litigation Practice Team in Richmond, Virginia helps executors, trustees, heirs, and beneficiaries navigate these disputes, from early warning signs through trial. Our attorneys handle claims involving undue influence, fraud, lack of testamentary capacity, breach of fiduciary duty, and contested transfers of assets, as well as guardianship and conservatorship proceedings and will and trust interpretation.
Gregory S. Bean is a partner at Whiteford, Taylor & Preston LLP in Richmond, Virginia. Greg is a litigator and member of the Estates, Trusts, & Fiduciary Litigation Practice Team who represents clients in will contests, trust challenges, and breach of fiduciary duty claims involving executors and trustees, among other similar claims. His practice extends to will and trust interpretation, guardianship and conservatorship matters, and power of attorney disputes. Greg holds a Best Lawyers in America® distinction in Trusts and Estates. Greg can be reached at GBean@whitefordlaw.com and (804) 977-1241.
Brett C. Herbert is a partner at Whiteford, Taylor & Preston LLP in Richmond, Virginia. Brett is a litigator and member of the Estates, Trusts, & Fiduciary Litigation Practice Team who represents clients in will contests, trust challenges, and breach of fiduciary duty claims involving executors and trustees, among other similar claims. He also handles guardianship and conservatorship proceedings, including both routine and contested matters. Brett has been recognized as a Virginia Super Lawyers "Rising Star" and named Best Lawyers in America® Ones to Watch in Trusts and Estates. Brett can be reached at BHerbert@whitefordlaw.com and (804) 977-1242.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.