Legal Issues: Don’t Mess With My Texas Will

Often in my law practice, I am asked to draft a Will that cannot be contested or challenged at time of probate without fear of adverse consequences.  The portion of the Will that is intended to perform this task is a “no contest” clause or more accurately called an “in terrorem” clause.  The term “in terrorem” or “in terrorem clause” conjures up pictures in our minds of old Alfred Hitchcock movies where we anticipate in horror the next ax to fall or the next blade to flash.  Although these pictures may be a bit extreme, they are not far from the intended meaning of the term “in terrorem.”  Black’s Law Dictionary offers a literal definition of the term as “In fright or alarm or terror.  Applied to legacies given upon condition that the recipient shall not dispute the validity or the dispositions of the will.”

In common usage an “in terrorem“ clause in a will is intended to be a warning to those who would question the validity of the Will or the way that property is designated to be distributed in the Will.  It also warns that their acts in contesting such provisions or validity shall revoke any gifts made to that person in the Will. 

Although the Texas legislature has not seen fit to pass a particular statute that controls and interprets “in terrorem” clauses, the case law established by Texas courts is clear in recognition of the enforceability of these clauses.  The fact that the court will likely recognize that an “in terrorem” exists does not imply that the clause will be enforceable to prohibit inheritance by the contesting party.

Case law in Texas has dictated that “in terrorem” clauses must be strictly construed.  Forfeiture will likely not be upheld by the courts unless the act done by the offending party comes squarely within the prohibited action. For example, in one case, the clause was triggered and a beneficiary’s portion was forfeited when he violated a specific condition by placing the testator’s wife in a nursing home.  The “in terrorem” clause expressly stated, “In the event that any of the beneficiaries or devisees to my Will should attempt to place my wife in a nursing facility and defeat my plan to continue home care for my wife before all of the Trust has been used for her care, his or her share of my estate and trust remainder shall be forfeited and descend to the other of my beneficiaries.”  106 S.W.3rd 860 (Tex App.- Dallas 2003, pet. denied) @ 863.

Actions in a general (non-specific) forfeiture clause will not likely be upheld and will not be effective to stop the bequest.  Some of the general types of non-specific breaches which have been held to be ineffective to stop a bequest include the following:

• Filing of a will contest will not, in and of itself, without further action shown to thwart the intent of the testator be enough to trigger the “in terrorem” provision;

• Filing a lawsuit to construe the Will or to obtain a court declaration regarding the intent of the testator will not be enough to trigger the “in terrorem” provision;

• Filing of an alternative Last Will and Testament will not normally trigger the provision;

• Challenges to the qualification of named fiduciaries will not trigger the provision;

• Suits against the executor for breach of fiduciary duty will not normally trigger the provision.

Texas courts are also not likely to uphold a forfeiture if the person violating the provision can show there was good cause to bring suit and that it was filed in good faith.

In my own practice, the most common shortcoming that I see in “in terrorem” clauses is the fact that they have “no teeth.”  There is sometimes a temptation on the part of the testator to declare that not only is the undesired beneficiary, whom we shall call Blacksheep, to receive only a small insignificant amount of inheritance, but also if they contest any portion of the Will that they will get nothing. This type of approach may make the testator feel better, but it does nothing to accomplish the goal of the “in terrorem” clause.

The only way that the “in terrorem” will be useful is if Blacksheep is in danger (i.e., “in terrorem”) of losing something significantly valuable to him/her if the contest is offered.  If Blacksheep is receiving nothing of significant value, then “in terrorem” is likely not the best approach to make certain that the testator’s wishes are ultimately followed. 

For an “in terrorem” clause to have its desired effect, two things are essential:  The clause should be very specific in pointing out the exact conditions which will trigger the forfeiture and the potential forfeiture should be significantly large. The person who might consider filing a will contest should be faced with a dilemma.  They will be forced to weigh the chances of winning (or losing) against the sure result of forfeiture if they do not win the contest (a task that becomes increasingly difficult if the clause was made specific).

The bottom line, as usual, is that in order to pass your property exactly as you intend for it to pass after your death, you will be well served to retain the services of an attorney familiar with the types of problems which are likely to be encountered.  These services should not only include advice on how to by-pass particular types of problems, but also should include the ability to spell out “in terrorem” conditions with such specificity that there can be no doubt as to the intentions of the testator regarding what constitutes a violation of the “in terrorem”.

James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see www.houstontxprobate.com.