Unlike other jurisdictions, Texas allows its citizens broad authority to create wills which convey the testator’s (person making the will) property to whomever they choose without meaningful restriction. However, depending upon the circumstances of the execution of a will, there is always the possibility that a will is contested in the course of probate.
What is an In Terrorem Clause?
An In Terrorem clause, also known as a No Contest clause, is an important tool available to a testator to protect their designated beneficiaries under the will from potential claims by other, potentially disinherited parties.
In Terrorem clauses are intended to dissuade beneficiaries under a will “from filing vexatious litigation, particularly as among family members, that might thwart the intent of the grantor” by making the gifts under the will conditional on the beneficiaries not challenging the validity of the will. Di Portanova v. Monroe, 402 S.W.3d 711, 715 (Tex.App.–Houston [1st Dist.] 2012, no pet.). In effect, what this generally means is that any beneficiaries who are entitled to assets under the will surrender their rights to those assets if they file a will contest.
How are In Terrorem Clauses Applied by Texas Courts?
In Terrorem clauses are strictly construed to avoid forfeiture when possible. In re Estate of Hamill, 866 S.W.2d 339, 342–43 (Tex.App.–Amarillo 1993, no writ) (citing Sheffield v. Scott, 662 S.W.2d 674, 676 (Tex.App.–Houston [14th Dist.] 1983, writ ref'd n.r.e.)). See also McLendon v. McLendon, 862 S.W.2d 662, 678 (Tex.App.—Dallas 1993, writ denied), disapproved on other grounds by Dallas Mkt. Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382 (Tex.1997); Gunter v. Pogue, 672 S.W.2d 840, 842 (Tex.App.—Corpus Christi 1984, writ ref'd n.r.e.).
Thus, courts have enforced in Terrorem clauses only when the intention of a suit is to thwart the grantor's intention. See Ferguson v. Ferguson, 111 S.W.3d 589, 599 (Tex.App.–Fort Worth 2003, pet. denied); see also Di Portanova, 402 S.W.3d at 717 (listing “a myriad of different types of lawsuits” found not to have been filed with the intent of thwarting the grantor's intent). Courts should find breach of a no-contest clause only when the acts of the parties come within the clause's express terms. Badouh v. Hale, 22 S.W.3d 392, 397 (Tex. 2000). See Gunter, 672 S.W.2d at 842.
If you are ever in a situation that requires contesting a will or defending a will contest, it is vitally important to contact a qualified and experienced probate attorney.
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