terrorem clause in Texas

2023Thus, we will focus our analysis on whether Hughes has demonstrated that the First Lawsuit violated the Trust’s in terrorem clause. 14 Such clauses are “strictly construed, and courts should find a breach of the clause only when the acts of the party come within the clause’s express terms.” Marshall, 2021 WL 208459 , at *5; see Sheffield v. Scott, 662 S.W.2d 674, 676 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (“As a general rule[,] forfeiture provisions in a will are to be strictly construed, and forfeiture is to be avoided if possible, and only where the acts of the parties come

2021Badouh v. Hale, 22 S.W.3d 392, 397 (Tex. 2000); see also Sheffield v. Scott, 662 S.W.2d 674, 676 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (noting that forfeiture under an in terrorem clause “is to be avoided if possible, and only where the acts of the parties come strictly within the express terms of the punitive clause of the will may a breach thereof be declared”).

2023See Doolin’s Harley-Davidson, Inc. v. Young, No. 06-05-00101-CV, 2006 WL 27983 , at *4 (Tex. App.—Texarkana 2006, no pet.) (mem. op.) (“[T]he taking of a voluntary nonsuit does not constitute litigation of the issues in a case and does not prejudice the parties against seeking the same relief in a subsequent lawsuit.”); Ferguson, 111 S.W.3d at 599 (holding that a breach of an in terrorem clause will be found only where the acts of a beneficiary or devisee clearly fall within the express terms of the clause); Estate of Hamill, 866 S.W.2d 339, 345 (Tex. App.—Amarillo 1993, no writ) (holding that

2023See Doolin’s Harley-Davidson, Inc. v. Young, No. 06-05-00101-CV, 2006 WL 27983 , at *4 (Tex. App.—Texarkana 2006, no pet.) (mem. op.) (“[T]he taking of a voluntary nonsuit does not constitute litigation of the issues in a case and does not prejudice the parties against seeking the same relief in a subsequent lawsuit.”); Ferguson, 111 S.W.3d at 599 (holding that a breach of an in terrorem clause will be found only where the acts of a beneficiary or devisee clearly fall within the express terms of the clause); Estate of Hamill, 866 S.W.2d 339, 345 (Tex. App.—Amarillo 1993, no writ) (holding that

2025Di Portanova v. Monroe, 402 S.W.3d 711, 715 (Tex. App.— Houston [1st Dist.] 2012, no pet.).

2023Marshall, 2021 WL 208459 , at *5; Di Portanova, 402 S.W.3d at 715 . 8 Hughes also spends a significant portion of her brief arguing that the in terrorem clause is enforceable.

2023The court further held that “[b]ecause the trust is silent regarding the removal of a trustee, even a beneficiary or remainderman who sought removal of a trustee would not violate the in terrorem clause.”10 Id.

2023And the Trust explicitly provides that the in terrorem clause “shall not apply” if a party “dismisses or withdraws such petition, contest or other claim or takes other actions requested by such fiduciary within thirty (30) business days after receipt of” written notice of a violation of the in in the terms of the trust to show that it was the grantors’ intent to retain a co-trustee even if that trustee breached his fiduciary duties to the trust.” Conte, 56 S.W.3d at 833 . 18 terrorem clause and the trustee’s intent to invoke the clause.

2023See Doolin’s Harley-Davidson, Inc. v. Young, No. 06-05-00101-CV, 2006 WL 27983 , at *4 (Tex. App.—Texarkana 2006, no pet.) (mem. op.) (“[T]he taking of a voluntary nonsuit does not constitute litigation of the issues in a case and does not prejudice the parties against seeking the same relief in a subsequent lawsuit.”); Ferguson, 111 S.W.3d at 599 (holding that a breach of an in terrorem clause will be found only where the acts of a beneficiary or devisee clearly fall within the express terms of the clause); Estate of Hamill, 866 S.W.2d 339, 345 (Tex. App.—Amarillo 1993, no writ) (holding that

2012Gunter v. Pogue, 672 S.W.2d 840 , 842–43 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.); see also Ferguson v. Ferguson, 111 S.W.3d 589, 599 (Tex. App.—Fort Worth 2003, pet. denied) (stating the purpose of the in terrorem clause is to dissuade beneficiaries from challenging gifts made in the will).

2016P’ship I, L.P., 255 S.W.3d 807, 819 (Tex. App.—Dallas 2008, no pet.) (“[A] clear and specific forfeiture provision 3 See Kirby Lake Dev., Ltd., 320 S.W.3d at 841–42 (interpreting the word “any” to mean “every” in contract to avoid an unintended forfeiture by developers of their interest in the water and sewer facilities they built and paid for); Aquaplex, Inc., 297 S.W.3d at 774 (interpreting a joint venture agreement to find that none of the contractual provisions support a forfeiture of interest in the event of a breach); McLendon, 862 S.W.2d at 678 (holding that a lawsuit asserting breach o

2012In McLendon, 862 S.W.2d at 667 , the will at issue contained an in terrorem clause that prohibited any “attempts to attack, modify or impair the validity of the provisions hereof[.]” The court concluded that the breach of fiduciary suit against the executors named in the will did not contest the validity of the will itself.

2012In Estate of Newbill, 781 S.W.2d 727, 728 (Tex.App.-Amarillo 1989, no writ), the in terrorem clause prohibited “directly or indirectly contesting] or attacking] this will or any of its provisions.” The will also named a beneficiary, Joe Newbill, as executor without bond and as trustee of the corpus of the estate.

2012In Estate of Newbill, 781 S.W.2d 727, 728 (Tex. App.—Amarillo 1989, no writ), the in terrorem clause prohibited “directly or indirectly contest[ing] or attack[ing] this will or any of its provisions.” The will also named a beneficiary, Joe Newbill, as executor without bond and as trustee of the corpus of the estate. 13 Id.

2012Gunter v. Pogue, 672 S.W.2d 840 , 842–43 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.); see also Ferguson v. Ferguson, 111 S.W.3d 589, 599 (Tex. App.—Fort Worth 2003, pet. denied) (stating the purpose of the in terrorem clause is to dissuade beneficiaries from challenging gifts made in the will).

2007Gunter v. Pogue , 672 S.W.2d 840 , 842 B 43 (Tex. App. C Corpus Christi 1984, writ ref = d n.r.e.); see also Ferguson v. Ferguson , 111 S.W.3d 589, 599 (Tex. App. C Fort Worth 2003, pet. denied) (stating the purpose of the in terrorem clause is to dissuade beneficiaries from challenging gifts made in the will).

2021See Estate of Cole, No. 02-13-00417-CV, 2015 WL 392230 , at *8 (Tex. App.—Fort Worth Jan. 29, 2015, no pet.) (mem. op.); see also Archer v. Moody, 544 S.W.3d 413, 417 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (noting that the construction of a will or trust instrument is a question of law).

2021See Estate of Cole, No. 02-13-00417-CV, 2015 WL 392230 , at *8 (Tex. App.—Fort Worth Jan. 29, 2015, no pet.) (mem. op.); see also Archer v. Moody, 544 S.W.3d 413, 417 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (noting that the construction of a will or trust instrument is a question of law).

2021Badouh v. Hale, 22 S.W.3d 392, 397 (Tex. 2000); see also Sheffield v. Scott, 662 S.W.2d 674, 676 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (noting that forfeiture under an in terrorem clause “is to be avoided if possible, and only where the acts of the parties come strictly within the express terms of the punitive clause of the will may a breach thereof be declared”).

2021Badouh v. Hale, 22 S.W.3d 392, 397 (Tex. 2000); see also Sheffield v. Scott, 662 S.W.2d 674, 676 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (noting that forfeiture under an in terrorem clause “is to be avoided if possible, and only where the acts of the parties come strictly within the express terms of the punitive clause of the will may a breach thereof be declared”).

2021See Beving v. Beadles, 563 S.W.3d 399, 406 (Tex. App.—Fort Worth 2018, pet. denied); see also Brann v. Guimaraes, No. 01-19-00439-CV, 2020 WL 5414980 , at *5–6 (Tex. App.—Houston [1st Dist.] Sept. 10, 2020, no pet. h.) (mem. op.) (claim based on providing false testimony implicated right to petition).

2021See Beving v. Beadles, 563 S.W.3d 399, 406 (Tex. App.—Fort Worth 2018, pet. denied); see also Brann v. Guimaraes, No. 01-19-00439-CV, 2020 WL 5414980 , at *5–6 (Tex. App.—Houston [1st Dist.] Sept. 10, 2020, no pet. h.) (mem. op.) (claim based on providing false testimony implicated right to petition).

2021A. TCPA Applies Elaine contends that the TCPA applies to Preston’s claims seeking Elaine’s disinheritance based on the in terrorem clause because the claims implicate Elaine’s right to petition. 8 Just as the TCPA applies to a claim related to the making of a statement in open court, see Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018), it also applies if the claim relates to the defendant’s affidavit testimony submitted to a court.

2021A. TCPA Applies Elaine contends that the TCPA applies to Preston’s claims seeking Elaine’s disinheritance based on the in terrorem clause because the claims implicate Elaine’s right to petition. 8 Just as the TCPA applies to a claim related to the making of a statement in open court, see Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018), it also applies if the claim relates to the defendant’s affidavit testimony submitted to a court.

2023See id.

2023Id.; see also Lesikar v. Moon, 237 S.W.3d 361, 370-71 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing McLendon, strictly construing in terrorem clause, and holding, “We conclude [a beneficiary’s] bringing a breach of fiduciary duty claim against [a trustee] does not violate the in terrorem clause and, therefore, does not result in the forfeiture of her share of the Family Trust.”). –17– We follow our precedent, McLendon, and are guided by Lesikar.

2023See Marshall v. Marshall, No. 14-18-00094-CV, 2021 WL 208459 , at *4, 7 (Tex. App.—Houston [14th Dist.] Jan. 21, 2021, pet. denied) (mem. op.) (holding that appellee’s allegation that appellants had violated an in terrorem clause by contesting a will in a different lawsuit implicated appellants’ exercise of their right to petition); see also Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015, no pet.) (concluding that the filing of a lawsuit is an exercise of the right to petition under the TCPA). 2.

2023See Marshall v. Marshall, No. 14-18-00094-CV, 2021 WL 208459 , at *4, 7 (Tex. App.—Houston [14th Dist.] Jan. 21, 2021, pet. denied) (mem. op.) (holding that appellee’s allegation that appellants had violated an in terrorem clause by contesting a will in a different lawsuit implicated appellants’ exercise of their right to petition); see also Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015, no pet.) (concluding that the filing of a lawsuit is an exercise of the right to petition under the TCPA). 2.

2016P’ship I, L.P., 255 S.W.3d 807, 819 (Tex. App.—Dallas 2008, no pet.) (“[A] clear and specific forfeiture provision 3 See Kirby Lake Dev., Ltd., 320 S.W.3d at 841–42 (interpreting the word “any” to mean “every” in contract to avoid an unintended forfeiture by developers of their interest in the water and sewer facilities they built and paid for); Aquaplex, Inc., 297 S.W.3d at 774 (interpreting a joint venture agreement to find that none of the contractual provisions support a forfeiture of interest in the event of a breach); McLendon, 862 S.W.2d at 678 (holding that a lawsuit asserting breach o

2016P’ship I, L.P., 255 S.W.3d 807, 819 (Tex. App.—Dallas 2008, no pet.) (“[A] clear and specific forfeiture provision 3 See Kirby Lake Dev., Ltd., 320 S.W.3d at 841–42 (interpreting the word “any” to mean “every” in contract to avoid an unintended forfeiture by developers of their interest in the water and sewer facilities they built and paid for); Aquaplex, Inc., 297 S.W.3d at 774 (interpreting a joint venture agreement to find that none of the contractual provisions support a forfeiture of interest in the event of a breach); McLendon, 862 S.W.2d at 678 (holding that a lawsuit asserting breach o

2016P’ship I, L.P., 255 S.W.3d 807, 819 (Tex. App.—Dallas 2008, no pet.) (“[A] clear and specific forfeiture provision 3 See Kirby Lake Dev., Ltd., 320 S.W.3d at 841–42 (interpreting the word “any” to mean “every” in contract to avoid an unintended forfeiture by developers of their interest in the water and sewer facilities they built and paid for); Aquaplex, Inc., 297 S.W.3d at 774 (interpreting a joint venture agreement to find that none of the contractual provisions support a forfeiture of interest in the event of a breach); McLendon, 862 S.W.2d at 678 (holding that a lawsuit asserting breach o

2015Humane Soc’y v. Austin Nat’l Bank, 531 S.W.2d 574, 577 (Tex. 1975).

2009William alleged additional counterclaims against Carolyn for breach of fiduciary duty, breach of trust, constructive fraud, fraud in the inducement, and statutory fraud, and he sought a declaratory judgment that Carolyn’s suit constitutes an indirect attack on the will in violation of an in terrorem clause in the will. [2] As used hereinafter, the term “section” refers to a section of the Probate Code unless otherwise indicated. [3] The original quotation is from Pirtle v. Gregory , 629 S.W.2d 919, 920 (Tex. 19 82) (per curiam). [4] “[A] bill of review is a separate proceeding from the underly

2009To prevail in an equitable bill of review proceeding, the plaintiff must establish: “(1) a meritorious defense to the cause of action alleged to support the judgment, (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent, (3) unmixed with any fault or negligence of his own.” Power v. Chapman , 994 S.W.2d 331, 335 (Tex. App.—Texarkana 1999, no pet.) (quoting Transworld Fin.

2009William alleged additional counterclaims against Carolyn for breach of fiduciary duty, breach of trust, constructive fraud, fraud in the inducement, and statutory fraud, and he sought a declaratory judgment that Carolyn’s suit constitutes an indirect attack on the will in violation of an in terrorem clause in the will. [2] As used hereinafter, the term “section” refers to a section of the Probate Code unless otherwise indicated. [3] The original quotation is from Pirtle v. Gregory , 629 S.W.2d 919, 920 (Tex. 19 82) (per curiam). [4] “[A] bill of review is a separate proceeding from the underly

2003Keszler, 943 S.W.2d 433, 435 (Tex. 1997) (holding broad-form mutual release of all claims “related to” relationship of doctor with hospital in proceeding for corrective action for tampering with documents sufficient to release defendant’s claim for exposure to toxic substance), with Victoria Bank & Trust Co. v. Brady , 811 S.W.2d 931, 937-38 (Tex. 1991) (holding release of bank from any and all claims or causes of action attributable to “above described loan transaction” not applicable to claims arising out of separate transaction based on separate line of credit). 4: Larry asserted that Norma

2003Keszler, 943 S.W.2d 433, 435 (Tex. 1997) (holding broad-form mutual release of all claims “related to” relationship of doctor with hospital in proceeding for corrective action for tampering with documents sufficient to release defendant’s claim for exposure to toxic substance), with Victoria Bank & Trust Co. v. Brady , 811 S.W.2d 931, 937-38 (Tex. 1991) (holding release of bank from any and all claims or causes of action attributable to “above described loan transaction” not applicable to claims arising out of separate transaction based on separate line of credit). 4: Larry asserted that Norma

1989See Calvery v. Calvery, 122 Tex. 204 , 55 S.W.2d 527, 530 (Tex.Comm’n App.1932, opinion adopted); Gunter v. Pogue, 672 S.W.2d 840, 842-43 (Tex.App.—Corpus Christi 1984, writ ref’d n.r.e.); First Methodist Episcopal Church South v. Anderson, 110 S.W.2d 1177, 1184 (Tex.Civ.App.—Dallas 1937, writ dism’d).

1989See Calvery v. Calvery, 122 Tex. 204 , 55 S.W.2d 527, 530 (Tex.Comm’n App.1932, opinion adopted); Gunter v. Pogue, 672 S.W.2d 840, 842-43 (Tex.App.—Corpus Christi 1984, writ ref’d n.r.e.); First Methodist Episcopal Church South v. Anderson, 110 S.W.2d 1177, 1184 (Tex.Civ.App.—Dallas 1937, writ dism’d).

1989See Calvery v. Calvery, 122 Tex. 204 , 55 S.W.2d 527, 530 (Tex.Comm’n App.1932, opinion adopted); Gunter v. Pogue, 672 S.W.2d 840, 842-43 (Tex.App.—Corpus Christi 1984, writ ref’d n.r.e.); First Methodist Episcopal Church South v. Anderson, 110 S.W.2d 1177, 1184 (Tex.Civ.App.—Dallas 1937, writ dism’d).