Salce v. Cardello ( 2023 )

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SALCE v. CARDELLO—DISSENT
D’AURIA, J., dissenting. In this certified appeal, the
court today holds that, in terrorem clauses, also known
as no-contest causes, violate the state’s public policy,
unless a beneficiary’s challenge to a trustee’s or execu-
tor’s actions is in bad faith or frivolous. Specifically,
the majority holds that ‘‘an in terrorem clause violates
public policy when its application would interfere with
the Probate Court’s exercise of its statutorily mandated
supervisory responsibilities over the administration of
an estate and its superintendence of the fiduciary’s stat-
utory obligations.’’ In my view, absent any pertinent
legislative action, for a supposed interest to qualify as
a ‘‘state public policy’’ sufficient to overcome an interest
such as the one implicated here—a testator’s right to
impose such conditions as she pleases upon the vesting
or enjoyment of her estate, which this court has consis-
tently upheld—the public interest must be strong,
important, clearly articulated, and dominant. This is
especially so because our statutes provide mechanisms
for the Probate Court to comply with its duty to oversee
fiduciaries. Accordingly, I respectfully dissent.
Initially, I observe that, when asked to exercise our
judicial authority to declare the public policy of the
state, and to declare further that this public policy
trumps otherwise legal actions or relationships, we
have, in other contexts, considered closely—and appro-
priately so—the strength of the public interest we are
being asked to vindicate measured against other public
or private interests at stake. See, e.g., Priore v. Haig,
344 Conn. 636, 658, 280 A.3d 402 (2022) (weighing public
interest in public participation in public hearing on spe-
cial permit application before town’s planning and zon-
ing commission against private interest of protecting
individuals from false statements in determining if pub-
lic policy justified application of immunity to state-
ments made during hearing). We also carefully examine
the sources from which we draw our conclusions about
the supposed public policy of the state. See id.For example, notwithstanding that contracts of employ-
ment for an indefinite term, at common law, were, and
remain, terminable ‘‘at will,’’ without the need for ‘‘a
showing of just cause for dismissal’’; Sheets v. Teddy’s
Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385(1980); we have ‘‘sanctioned a common-law cause of
action for wrongful discharge in situations in which the
reason for the discharge involved impropriety ‘derived
from some important violation of public policy.’ ’’ Daley
v. Aetna Life & Casualty Co., 249 Conn. 766, 798, 734
A.2d 112 (1999), quoting Sheets v. Teddy’s Frosted
Foods, Inc., supra, 475. ‘‘[W]e repeatedly have under-
scored our adherence to the principle that the public
policy exception to the general rule allowing unfettered
termination of an at-will employment relationship is a
narrow one . . . . Consequently, we have rejected
claims of wrongful discharge that have not been predi-
cated [on] an employer’s violation of an important and
clearly articulated public policy.’’ (Emphasis added;
internal quotation marks omitted.) Dunn v. Northeast
Helicopters Flight Services, LLC, 346 Conn. 360, 371,
290 A.3d 780 (2023). As we recognized in Morris v.
Hartford Courant Co., 200 Conn. 676, 513 A.2d 66(1986), however, because of ‘‘the inherent vagueness
of the concept of public policy, it is often difficult to
define precisely the contours of the exception.’’ Id., 680.
Said another way, it is not clear in every case precisely
what public interest is at stake and, once identified,
whether that public interest is sufficiently important or
clearly articulated to justify applying the public policy
exception to the at-will employment doctrine.
A complication that can arise, when considering
whether to invalidate a contractual provision in the
name of public policy, is that there may be competing
public and private interests. For example, this court
has recognized as ‘‘well established that parties are free
to contract for whatever terms on which they may agree
. . . [although] it is equally well established that con-
tracts that violate public policy are unenforceable.’’
(Internal quotation marks omitted.) Geysen v. Securitas
Security Services USA, Inc., 322 Conn. 385, 392, 142
A.3d 227 (2016). In light of these dueling principles of
law, a contract provision violates public policy, and
is unenforceable, if it ‘‘negate[s] laws enacted for the
common good or is designed to evade statutory require-
ments . . . .’’ (Internal quotation marks omitted.) Id.,
397.
A ‘‘specific application’’ of this ‘‘general [common-
law] doctrine . . . that a court may refuse to enforce
contracts that violate law or public policy’’ is found in
our cases in which a party to a voluntary arbitration
agreement asks a court to vacate the arbitration award
on the ground that enforcing it would violate public
policy. (Internal quotation marks omitted.) HH East
Parcel, LLC v. Handy & Harman, Inc., 287 Conn. 189,
197, 947 A.2d 916 (2008). ‘‘The public policy exception
applies only when the award is clearly illegal or clearly
violative of a strong public policy.’’ (Emphasis added;
internal quotation marks omitted.) State v. New Eng-
land Health Care Employees Union, District 1199,
AFL-CIO, 271 Conn. 127, 135, 855 A.2d 964 (2004). We
have said further in this context that ‘‘the public policy
exception to arbitral authority should be narrowly con-
strued and [a] court’s refusal to enforce an arbitrator’s
. . . [award] is limited to situations [in which] the con-
tract as interpreted would violate some explicit public
policy that is well defined and dominant, and is to be
ascertained by reference to the laws and legal prece-
dents and not from general considerations of supposed
public interests.’’ (Emphasis added; internal quotation
marks omitted.) Id., 135–36. ‘‘[G]eneral notions of the
public good, public accountability or the public trust are
insufficient grounds for invoking the extremely narrow
public policy exception to judicial enforcement of arbi-
tral awards.’’ New Haven v. AFSCME, Council 4, Local
3144, 338 Conn. 154, 187–88, 257 A.3d 947 (2021).
I would scrutinize with the same rigor as in these
other contexts the claimed public policy the defendant,
Joan Cardello, advances to invalidate the in terrorem
clauses at issue in the present case. In other words, I
believe that, for a public interest to constitute a public
policy of such importance as to negate the clear and
explicit intent of a testator, as stated in an in terrorem
clause, the public interest must be strong, important,
clearly articulated, and dominant. This approach is justi-
fiable and logical, in my view, because, in weighing the
importance of a probate court’s supervision of fiduciar-
ies and in ultimately vindicating this supposed public
interest, this court should also be mindful of any com-
peting interests—private or public—that our law has
historically protected. If we fail to consider the strength
of the competing public and private interests at stake,
this court in essence becomes the ‘‘roving commission’’
we so often say we are not, arrogating to ourselves the
‘‘general legal oversight . . . of private entities’’ in the
name of vindicating public policy. TransUnion LLC v.
Ramirez, U.S. , 141 S. Ct. 2190, 2203, 210 L. Ed.
2d 568 (2021); see also CT Freedom Alliance, LLC v.
Dept. of Education, 346 Conn. 1, 28, 287 A.3d 557 (2023).
In particular, for more than one century, this court
has recognized the ‘‘general rule [that] a testator has
the right to impose such conditions as he pleases upon
a beneficiary as conditions precedent to the vesting of
an estate . . . .’’ (Internal quotation marks omitted.)
DeLadson v. Crawford, 93 Conn. 402, 410, 106 A. 326(1919); accord Greenwich Trust Co. v. Tyson, 129 Conn.
211, 218, 27 A.2d 166 (1942); see also Peiter v. Degenr-
ing, 136 Conn. 331, 335, 71 A.2d 87 (1949) (‘‘[a] testator
may impose such conditions as he pleases upon the
vesting or enjoyment of the estate he leaves, provided
they are certain, lawful and not opposed to public pol-
icy’’). Our courts have ‘‘sustain[ed] forfeiture clauses
as a method of preventing will contests, which so often
breed family antagonisms, and expose family secrets
better left untold, and result in a waste of estates
through expensive and long drawn-out litigation.’’ South
Norwalk Trust Co. v. St. John, 92 Conn. 168, 175, 101
A. 961 (1917); see also McGrath v. Gallant, 143 Conn.
App. 129, 132, 69 A.3d 968 (2013) (testator inserted in
terrorem clause into will given ‘‘history of strife among
his children . . . anticipat[ing] that the animosity
among the siblings would only escalate after his
death’’); cf. Parker v. Benoist, 160 So. 3d 198, 205 (Miss.
2015) (‘‘forfeiture clauses may serve a valuable purpose
in deterring ‘unwarranted challenges to the donor’s
intent by a disappointed person seeking to gain unjusti-
fied enrichment,’ or preventing ‘costly litigation that
would deplete the estate or besmirch the reputation of
the donor,’ or discouraging ‘a contest directed toward
coercing a settlement—the so-called strike suit’ ’’); Rus-
sell v. Wachovia Bank, N.A., 370 S.C. 5, 12, 633 S.E.2d
722 (2006) (‘‘[No-contest] clauses may protect estates
from costly and time-consuming litigation and minimize
the bickering over the competence and capacity of tes-
tators, and the various amounts bequeathed. . . . No-
contest clauses may have the desirable effect of ensur-
ing that the details of a testator’s private life are not
made public.’’ (Citation omitted; internal quotation marks
omitted.). There has been no suggestion in the present
case that these principles and interests do not apply
equally to trusts.
More recently, we have reiterated that ‘‘[t]he cardinal
rule of testamentary construction is the ascertainment
and effectuation of the intent of the testator, if that
[is] possible. If this intent, when discovered, has been
adequately expressed and is not contrary to some posi-
tive rule of law, it will be carried out.’’ (Internal quota-
tion marks omitted.) Schwerin v. Ratcliffe, 335 Conn.
300, 310, 238 A.3d 1 (2020); see also Corcoran v. Dept.
of Social Services, 271 Conn. 679, 700, 859 A.2d 533(2004) (‘‘[i]t is well settled that in the construction of
a testamentary trust, the expressed intent of the testator
must control’’ (internal quotation marks omitted)).
Thus, it is clear that Connecticut law has historically
protected a testator’s right to control his property while
he or she is living, and by will to direct its use after his
or her death, unless to effectuate that intent would
violate a positive rule of law. See Peiter v. Degenring,
supra, 136 Conn. 335.1 One such ‘‘positive rule of law’’
in Connecticut is statutory: namely, that, regardless of
any provisions in the will, a surviving spouse may, sub-
ject to certain exceptions, elect ‘‘to take a statutory
share of the real and personal property passing under
the will of the deceased spouse’’ rather than take what
the deceased spouse has by will devised or bequeathed
to the surviving spouse. General Statutes § 45a-436 (a).2
To secure a judicial determination that this compet-
ing interest in favor of upholding a testator’s stated
intent has been overcome—that is, it violates a positive
rule of law—I would require a showing of a strong,
important, clearly articulated, and dominant public
interest that outweighs the private interests in allowing
testators to devise their property as they see fit. In the
present case, the defendant contends, and the majority
agrees, that, when a beneficiary brings a good faith
challenge to the actions of a fiduciary, enforcement of
the in terrorem clauses at issue contravenes the admin-
istrative interests embodied in General Statutes §§ 45a-
175, 45a-233 (d) and 45a-242 (a). See footnotes 6–8 of
the majority opinion. Specifically, the majority holds
that these statutes reflect policies important enough
and strong enough to justify the judicial action the court
takes today, invalidating in terrorem clauses employed
for decades because beneficiaries assist the Probate
Court in monitoring the actions of fiduciaries. I lack
the majority’s confidence that I can divine that this is
in fact a sufficiently dominant public policy of our state.
Instead, just as the majority would defer to the legisla-
ture consideration of whether the application of a good
faith, probable cause exception constitutes an indepen-
dent basis for relieving the defendant from the applica-
tion of the in terrorem clauses, I am reluctant to declare
that these clauses violate public policy.
The majority’s survey of the few other jurisdictions
that have addressed the issue reveals that some courts
have in fact held that these clauses are unenforceable
because insulating the fiduciary from challenge violates
the policy underlying state statutes requiring court
supervision of these fiduciaries. The majority’s discus-
sion of these cases is accurate, and I will not repeat
it here.
There are cases that take a different approach than
the court does in the present case, however. For exam-
ple, Wyoming courts have held that in terrorem clauses
are enforceable, recognizing both a long judicial history
of upholding of a testator’s clearly expressed intent and
the fact that Wyoming’s legislature has not adopted the
rule the majority in the present case adopts judicially,
despite having had a chance to do so. Specifically, in
EGW v. First Federal Savings Bank of Sheridan, 413
P.3d 106 (Wyo. 2018), the plaintiffs claimed that an in
terrorem provision was void because, by allowing a
minor child’s parents to deprive him of property, the
provision violated the public policy underlying constitu-
tional provisions protecting minors, providing for due
process, and providing access to the courts. Id., 111–12.
In rejecting the plaintiffs’ claim, the court emphasized
its well established precedent upholding ‘‘the absolute
right of the testator to dispose of his property after
death as he sees fit, provided he is legally qualified so
to do and acts as the law directs.’’ (Internal quotation
marks omitted.) Id., 110. The court explained that ‘‘[n]o
right of the citizen is more valued than the power to
dispose of his property by will. No right is more sol-
emnly assured to him by the law. Nor does it depend
in any sense upon the judicious exercise of that right.
It rarely happens that a man bequeaths his estate to
the entire satisfaction of either his family or friends.
The law wisely secures equality of distribution where
a man dies intestate, but the very object of a will is to
produce inequality. . . . In this country a man’s preju-
dices form a part of his liberty. He has a right to them.
He may be unjust to his children or relatives. He is
entitled to the control of his property while living, and
by will to direct its use after his death, subject only
to such restrictions as are imposed by law.’’ (Internal
quotation marks omitted.) Id.
The court in EGW noted that, because of that policy,
the court in Dainton v. Watson, 658 P.2d 79, 81 (Wyo.
1983), ‘‘previously [had] rejected the claim that no-con-
test clauses are unenforceable as violative of public
policy, even [when] a challenge to the testamentary
instrument is made in good faith and with probable
cause.’’ EGW v. First Federal Savings Bank of Sheri-
dan, supra, 413 P.3d 110. Specifically, in Dainton, the
trial court declared a bequest to the defendant forfeited
pursuant to the terms of an in terrorem clause in the
will. Dainton v. Watson, supra, 79. The defendant appeal-
ed, claiming that the in terrorem clause was invalid
because ‘‘public policy demands that those who contest
wills in good faith and with probable cause to believe
that a will is invalid should be protected from strict
enforcement of the terms of a no-contest clause’’; id., 82;
based on § 3-905 of the Uniform Probate Code, which
provides: ‘‘A provision in a will purporting to penalize
any interested person for contesting the will or institut-
ing other proceedings relating to the estate is unenforce-
able if probable cause exists for instituting proceed-
ings.’’ (Internal quotation marks omitted.) Id., 80. The
court in Dainton rejected the defendant’s argument,
holding that (1) the claim ‘‘ignore[d] the overriding pol-
icy of [the] court and the [well accepted] principle else-
where that a testator’s intent as determined by the lan-
guage in his will is controlling’’; id., 82; and, (2) unlike
the legislatures of other states, Wyoming’s legislature
had chosen not to incorporate § 3-905 of the Uniform
Probate Code into Wyoming’s then recent enactment
of its probate code. Id.; see also In re Houston’s Estate,
371 Pa. 396, 399, 89 A.2d 525 (1952) (‘‘[I]f a testator
may disinherit his children, he may also condition their
legacies so that the happening of a certain event will
result in their disinheritance. Here . . . the widow was
faced with the unfortunate choice of receiving a small
legacy or causing the children to lose their bequests,
but that, once again, is a question of the wisdom of the
testator and not public policy.’’); T. Challis & H. Zarit-
sky, State Laws: No-Contest Clauses, p. 2 (‘‘The largest
group of states (22) adopt the Uniform Probate Code
rule and state that no-contest clauses are enforceable,
unless the contest is based on probable cause. Sixteen
of these states have adopted [§] 2-517 and/or [§] 3-905
of the Uniform Probate Code, to this effect. See Alaska,
Arizona, Colorado, Hawaii, Idaho, Maine, Massachu-
setts, Michigan, Minnesota, Montana, Nebraska, New
Jersey, New Mexico, North Dakota, South Carolina,
South Dakota, and Utah. Five more states, Iowa, Kansas,
Maryland, Pennsylvania and Wisconsin, have a similar
rule, but without using the specific language of the [Uni-
form Probate Code].’’), available at http://www.actec.org/
assets/1/6/State_Laws_No_Contest_Clauses_-_Chart.pdf)
(last visited September 21, 2023).3
The two concerns raised by the court in Dainton
apply equally in the present case. In my view, our state’s
probate administration statutes, which have existed for
decades, in tandem and in harmony with in terrorem
clauses, manifest at best a generalized notion of the
public good; see New Haven v. AFSCME, Council 4,
Local 3144, supra, 338 Conn. 187–88; and not the strong,
important, clearly articulated, and dominant public pol-
icy that we should require before acting judicially to
overcome the testator’s explicit intent. The court’s hold-
ing today means that the enforcement of in terrorem
clauses has been violating public policy since the advent
of our current Probate Court system and that the innu-
merable in terrorem clauses inserted by individuals into
wills and trusts for decades—perhaps centuries—are
suddenly illegal notwithstanding that this court has
‘‘sustain[ed]’’ them for more than one century ‘‘as a
method of preventing will contests . . . .’’ South Nor-
walk Trust Co. v. St. John, supra, 92 Conn. 175.
Moreover, despite various amendments to the stat-
utes governing probate procedures, wills, and trusts in
the last decade; see, e.g., Public Acts 2019, No. 19-137
(adopting Connecticut Uniform Trust Code, General
Statutes § 45a-499a et seq.); Connecticut’s legislature,
unlike other state legislatures; see R. Weisbord, ‘‘The
Governmental Stake in Private Wealth Transfer,’’ 98
B.U. L. Rev. 1229, 1273 n.240 (2018), citing T. Challis &
H. Zaritsky, supra, p. 2; never has amended the statutes
governing the Probate Court to render in terrorem
clauses unenforceable in their entirety or under particu-
lar circumstances, even though it has had the opportu-
nity to do so. Specifically, the legislature has not
adopted the Uniform Probate Code as a whole or § 3-
905 to create an exception for good faith and probable
cause. This is telling because the legislature has explic-
itly adopted particular sections of the Uniform Probate
Code, showing that it knows how to do so when it
wants to, but has not done so in relation to in terrorem
clauses. See In re Joshua S., 260 Conn. 182, 206 n.18,
796 A.2d 1141 (2002) (discussing legislative history of
amendment to General Statutes § 45a–596, which
explained that amendment ‘‘follow[ed] the lead of [Uni-
form Probate Code § 5-202]’’ (internal quotation marks
omitted); G. Borrelli, ‘‘The Appointment of a Neutral
Third-Party Conservator in Connecticut: Where Do We
Stand?,’’ 26 Quinnipiac Prob. L.J. 156, 175 (2012) (‘‘Con-
necticut has adopted the [Uniform Probate Code’s last
resort] option to appointing a conservator as well as
the clear and convincing evidence standard’’). Nor has
this court, until today, relied on as persuasive authority
§ 96 (2) of the Restatement (Third) of Trusts,4 which
provides that ‘‘[a] no-contest clause shall not be enforced
to the extent that doing so would interfere with the
enforcement or proper administration of the trust.’’ See,
e.g., Ferguson v. Ferguson, 167 Idaho 495, 506, 473 P.3d
363 (2020) (relying on § 96 (2) of Restatement (Third)
of Trusts to hold that in terrorem clause was unenforce-
able).
The majority itself acknowledges that it is for the
legislature to determine whether a good faith and proba-
ble cause exception applies to in terrorem clauses,
allowing beneficiaries to object to a fiduciary’s actions
if they do so in good faith and with probable cause.
Although the majority states that it is not deciding the
applicability of the good faith, probable cause exception
by holding that in terrorem clauses are viable only when
a beneficiary’s challenge to the fiduciary’s actions is
not brought in good faith, the majority, in essence, takes
this decision out of the legislature’s hands.
The majority takes this action by invoking the public
interest in the Probate Court’s supervision of fiduciaries
but fails to explain how the enforcement of in terrorem
provisions has hampered this interest in the decades
that these kinds of clauses have been quietly coexisting
with our statutes governing probate proceedings. The
answer may lie in the fact that other statutes provide
means for the Probate Court to supervise fiduciaries
and have for decades. Although it is true that beneficiar-
ies may assist the Probate Court in monitoring the
actions of fiduciaries; see General Statutes § 45a-175
(c) (1) (‘‘[a]ny beneficiary of an inter vivos trust may
petition a Probate Court specified in section 45a-499p
for an accounting by the trustee or trustees’’); the Pro-
bate Court’s duty and power to supervise fiduciaries
are not limited to issues that beneficiaries raise. Rather,
it is undisputed in the present case that, eventually,
there would have been a final accounting at which time
the Probate Court would have been required to review
the filings at issue and could have addressed any errors.
See General Statutes § 45a-175 (a) (Probate Court ‘‘shall
have jurisdiction of the interim and final accounts of
testamentary trustees’’); General Statutes § 45a-177 (a)
(‘‘[a]ll conservators, guardians and trustees of testa-
mentary trusts, unless excused by the will creating the
trust, shall render periodic accounts of their trusts
signed under penalty of false statement to the Probate
Court having jurisdiction for allowance, at least once
during each three-year period and more frequently if
required by the court or by the will or trust instrument
creating the trust’’); General Statutes § 45a-286 (‘‘[a]ny
court of probate shall, before proving or disapproving
any last will and testament, or codicil thereto, hold a
hearing thereon, of which notice, either public or per-
sonal or both, as the court may deem best, has been
given to all parties known to be interested in the estate,
unless all parties so interested sign and file in court a
written waiver of such notice, or unless the court, for
cause shown, dispenses with such notice’’). Addition-
ally, although our statutes allow beneficiaries to raise
challenges to the actions of a trustee or executor, they
also allow probate courts to challenge and penalize
trustee or executor misconduct on their own motion.
See General Statutes § 45a-242 (a) (‘‘[t]he Probate Court
having jurisdiction may, upon its own motion . . .
after notice and hearing, remove any fiduciary’’); Gen-
eral Statutes § 45a-98 (a) (6) (Probate Court, ‘‘to the
extent provided for in section 45a-175, [may] call execu-
tors, administrators, trustees . . . to account concern-
ing the estates entrusted to their charge’’). Thus, con-
trary to the majority’s contention, in terrorem clauses
do not allow testators to ‘‘shut the door of truth and
prevent the observance of the law . . . .’’ (Internal quo-
tation marks omitted.)
The in terrorem clauses at issue in the present case
in particular provide another means for the Probate
Court to supervise fiduciaries. These clauses explicitly
contemplate actions by the beneficiary that would not
implicate these clauses. Specifically, both clauses pro-
hibit a beneficiary from objecting to the fiduciary’s
actions but only so long as the fiduciary has taken
those actions in good faith.5 Thus, if the fiduciary in
the present case did not take a defensible position on
the inclusion of the allegedly improper information in
the tax documents, the in terrorem clauses would not
protect the fiduciary against action by the beneficiary.
But the clauses also contemplate that the executor
or trustee might make mistakes or that there might be
good faith disagreements over actions the executor or
trustee might undertake. Nonetheless, it is clear from
the language of the clauses that the testator intended
for the determinations of the executor or trustee, absent
bad faith, to be the end of the matter. This result would
not be so unusual. Under our various standards of
review, our courts are required under certain circum-
stances to tolerate the mistakes of other denominated
decision makers, even when the court itself would have
made different findings or reached different conclu-
sions. See, e.g., McCann v. Dept. of Environmental
Protection, 288 Conn. 203, 217, 952 A.2d 43 (2008)
(‘‘[F]actual errors do not constitute grounds for vacat-
ing the arbitrator’s decision. . . . [T]he arbitrators are
empowered to decide factual and legal questions and
an award cannot be vacated on the [ground] that . . .
the interpretation of the agreement by the arbitrators
was erroneous.’’ (Citation omitted; internal quotation
marks omitted.)).
In my view, enforcing the in terrorem clauses in this
case implicates no issues of public importance. Rather,
the facts of the present case illustrate how broadly
applying a generalized—and in this case, at best, admin-
istrative—interest in the name of ‘‘public policy’’ consti-
tutes an unwarranted intrusion on private interests.
This is not a case involving a beneficiary who acted
as a whistle-blower, shedding light on scandalous or
improper behavior by a fiduciary. Rather, the defendant,
as the single beneficiary of nearly the entire estate of
the decedent, challenged the executor’s filing of an
allegedly inaccurate tax return. Describing the sup-
posed public policy at stake as ‘‘the state’s interest in
receiving accurate tax filings and payments’’; Salce v.
Cardello, 210 Conn. App. 66, 80, 269 A.3d 889 (2022);
or the fiduciary’s actions as ‘‘endanger[ing] the interests
of the beneficiaries or the estate,’’ dresses up what is
essentially a dispute about how much the defendant
would receive from the estate. Id., 81. Perhaps the fidu-
ciary’s actions resulted in the estate’s overpayment of
taxes and therefore, perhaps, in turn, reduced the defen-
dant’s inheritance. As far as I can see, no state interest
justifies voiding previously valid in terrorem clauses
on the ground of public policy. The testator expressly
stated her intent that beneficiaries should not contest
the actions of the executor or trustee and thereby waste
time and money on such a dispute.
That this is fundamentally a private matter not impli-
cating a strong, important, clearly articulated, and domi-
nant public policy is made even more clear by the fact
that the testator originally appointed the defendant the
executor of her estate. As the executor, the defendant
would have been the one to file the tax documents at
issue and, presumably, would have insisted on including
what, in her view, was the accurate information. Instead
of being personally involved in filing the tax documents,
however, the defendant declined to take on the execu-
tor role her mother had asked her to, instead deciding
to second-guess determinations the executor made in
his role that might be against her interest. By the terms
of the trust and will, that is exactly what her mother
did not want. I fail to see a public interest strong enough,
clear enough, and important enough to overcome the
testator’s own interest in placing a condition on the
distribution of the trust’s proceeds to any and all benefi-
ciaries, either to prevent family strife or to prevent
dissipation of the estate.
Accordingly, I respectfully dissent.
1
It has been said that the law ‘‘abhors a forfeiture’’ and that, as the
Appellate Court recognized, in terrorem clauses ‘‘are disfavored by the courts
and thus must be construed strictly to prevent forfeiture.’’ Salce v. Cardello,
210 Conn. App. 66, 74, 269 A.3d 889 (2022). These are, at best, maxims as
opposed to positive rules of law. See Micek-Holt v. Papageorge, Superior
Court, judicial district of Windham at Putnam, Docket Nos. CV-XX-XXXXXXX-S
and CV-XX-XXXXXXX-S (September 26, 2016) (‘‘court is mindful of the [maxim]
‘equity abhors a forfeiture’ ’’), aff’d, 180 Conn. App. 540, 183 A.3d 1213, cert.
denied, 328 Conn. 934, 183 A.3d 634 (2018). Like the Appellate Court, the
majority does not attempt to arrive at a narrow construction of the clauses
at issue to prevent a forfeiture, nor could it given their broad language.
Rather, both the Appellate Court and the majority have invalidated the
clauses entirely, an altogether different undertaking for which there is no
equivalent maxim.
2
A ‘‘statutory share’’ means ‘‘a life estate of one-third in value of all the
property passing under the will, real and personal, legally or equitably owned
by the deceased spouse at the time of his or her death, after the payment
of all debts and charges against the estate.’’ General Statutes § 45a-436 (a).
3
Additionally, some state courts have upheld in terrorem clauses as a
matter of public policy because they recognize a distinction between chal-
lenges to the provisions of the will or trust and challenges to the trustee’s
or executor’s action. See McLendon v. McLendon, 862 S.W.2d 662, 679 (Tex.
App. 1993, writ denied) (‘‘We construe the language of the in terrorem clause
to prohibit a beneficiary from contesting the validity of the will or seeking
to attach, modify, or impair the validity of the provisions. It does not prohibit
a beneficiary from instituting legal action against a [coexecutor] for breach
of fiduciary duties. We disagree with [the coexecutor’s] contention that the
clause applies to any challenge of the [coexecutor’s] right to engage in
business in partnership form. The right to challenge a fiduciary’s actions is
inherent in the fiduciary/beneficiary relationship.’’); In re Estate of Rimland,
2003 WL 21302910, *2 (N.Y. Sur. June 3, 2003) (‘‘In terrorem clauses are
designed to prevent attacks on the validity of a will and it has been held
that they do not come into play where the issue is whether a fiduciary
nominated in the will is qualified to serve in that capacity (In re Estate of
Stralem, 181 Misc. 2d 715, 695 N.Y.S.2d 274 [1999]) or where the issue is
whether a legacy to a charity under the will is barred under the law (In re
Estate of Alexander, 90 Misc. 2d 482, 395 N.Y.S.2d 598 [1977]).’’).
4
Comment (e) to § 96 (2) of the Restatement (Third) of Trusts provides
in relevant part: ‘‘The rule of Subsection (2) provides only that an otherwise
enforceable no-contest clause is unenforceable insofar as doing so would
inhibit beneficiaries’ enforcement of their rights under a trust (whether
created by the will or other instrument) or would otherwise undermine the
effective, proper administration of the trust. Suits to enforce the duties of
trustees, or to determine the proper meaning or effect of the terms of a
trust or to enforce those terms, normally have the effect of seeking to
ascertain and implement settlor intentions and trust provisions under the
instrument—rather than constituting a ‘contest’ or challenge to the instru-
ment or its provisions.
‘‘Accordingly, a no-contest clause ordinarily (see Reporter’s Note, final
paragraph) is unenforceable to prevent or punish: a beneficiary’s petition
for instructions (§ 71, even though, for example, it seeks an interpretation
contrary to the trustee’s interpretation—and see further Reporter’s Note to
this Comment); a demand for or challenge to a trustee’s accounting (§ 83);
a suit to enjoin or redress a breach of trust (§ 95); a petition for removal
of a trustee for unfitness or for repeated or serious breach of trust (§ 37);
a suit alleging that a trustee’s particular exercise of discretion or even
‘absolute’ discretion constituted an abuse of discretion (§ 87); or the like.
Similarly, a beneficiary’s allegation that a trustee’s misconduct exceeded
the standard of misconduct permissibly protected by an exculpatory clause
(Comments b and c) is not a contest of that provision of the instrument.
See generally § 27 (2) and § 27, Comment b, and Reporter’s Note thereto.
See also Restatement Third, Property (Wills and Other Donative Transfers)
§ 8.5, Comment d, on suits to construe, reform, or modify.
‘‘The rule of this Subsection (2) does not prevent enforcement of a no-
contest clause insofar as it would, absent probable cause, exact forfeiture:
(a) for a beneficiary’s challenge to the validity of a trust or trust provision
on grounds of incapacity (§ 11), lack of due execution (§§ 17–23), or forgery,
fraud, undue influence, or other wrongful procurement (§ 12); or (b) for a
beneficiary’s claim either (i) as a creditor or (ii) as the owner of property
that the settlor intended to include in the trust, provided, in either case,
that the no-contest clause is clearly intended to apply to such a claim.’’ 4
Restatement (Third), Trusts, § 96 (2), comment (e), pp. 31–32 (2012).
5
The in terrorem clause in the trust agreement provides in relevant part:
‘‘If [a] beneficiary under this [t]rust [a]greement . . . directly or indirectly
. . . (iv) objects in any manner to any action taken or proposed to be taken
in good faith by any [t]rustee . . . [and/or] (vii) files any creditor’s claim
against [the] [t]rustee (without regard to its validity) . . . then that person’s
right as a beneficiary of this [t]rust [a]greement and to take any interest given
to him or her by terms of this [t]rust [a]greement . . . shall be determined
as it would have been determined if the person and the person’s descendants
had predeceased [the] [s]ettlor without surviving issues . . . .’’ (Empha-
sis added.)
The in terrorem clause in the will likewise provides in relevant part: ‘‘If
[a] beneficiary hereunder . . . directly or indirectly . . . (iv) objects in any
manner to any action taken or proposed to be taken in good faith by any
[e]xecutor or trustee . . . [and/or] (vii) files any creditor’s claim against
my [e]xecutor (without regard to its validity) or trustee . . . then that per-
son’s right as a beneficiary of this [w]ill and any [c]odicil thereto or trust
. . . shall be determined as it would have been determined if the person
and the person’s descendants had predeceased me without surviving issue.
. . .’’ (Emphasis added.)