terrorem clause in Georgia

2020The effect of [her] success would leave the will in full force and effect.”44 40 Burkhalter I, 343 Ga. App. at 421 (1); see Sinclair, 284 Ga. at 504 (2) (holding that a beneficiary did not violate an in terrorem clause by filing “a complaint for declaratory judgment, seeking to determine whether he would violate the in terrorem clause by bringing an appropriate action in good faith against Executor for his removal “); Cohen v. Reisman, 203 Ga. 684, 685 ( 48 SE2d 113 ) (1948) (holding that “the trial court properly entered judgment declaring that the plaintiff beneficiary could maintain an acti

2020The effect of [her] success would leave the will in full force and effect.”44 40 Burkhalter I, 343 Ga. App. at 421 (1); see Sinclair, 284 Ga. at 504 (2) (holding that a beneficiary did not violate an in terrorem clause by filing “a complaint for declaratory judgment, seeking to determine whether he would violate the in terrorem clause by bringing an appropriate action in good faith against Executor for his removal “); Cohen v. Reisman, 203 Ga. 684, 685 ( 48 SE2d 113 ) (1948) (holding that “the trial court properly entered judgment declaring that the plaintiff beneficiary could maintain an acti

2018See, e.g., Sinclair v. Sinclair, 284 Ga. 500, 502 (2) ( 670 SE2d 59 ) (2008) (involving an in terrorem clause in a will); Taylor v. Rapp, 217 Ga. 654, 656 ( 124 SE2d 271 ) (1962) (citing former 5 See, e.g., Snook v. Sessoms, 256 Ga. 482, 482 ( 350 SE2d 237 ) (1986), citing Cohen v. Reisman, 203 Ga. 684, 685 (4) ( 48 SE2d 113 ) (1948). 9 version of OCGA § 53-4-68); Cohen v. Reisman, 203 Ga. 684, 684 (2) ( 48 SE2d 113 ) (1948) (involving an in terrorem clause in a will).

2018See, e.g., Sinclair v. Sinclair, 284 Ga. 500, 502 (2) ( 670 SE2d 59 ) (2008) (involving an in terrorem clause in a will); Taylor v. Rapp, 217 Ga. 654, 656 ( 124 SE2d 271 ) (1962) (citing former 5 See, e.g., Snook v. Sessoms, 256 Ga. 482, 482 ( 350 SE2d 237 ) (1986), citing Cohen v. Reisman, 203 Ga. 684, 685 (4) ( 48 SE2d 113 ) (1948). 9 version of OCGA § 53-4-68); Cohen v. Reisman, 203 Ga. 684, 684 (2) ( 48 SE2d 113 ) (1948) (involving an in terrorem clause in a will).

2022We then held that the grandchild’s “initiation of legal proceedings triggered the in terrorem clause and might, under circumstances which may be uncovered, be attributed to a party other than [the grandchild].” Id.

2022Stating that this Court and the Court of Appeals have concluded in cases involving similar in terrorem clauses that the “mere ‘initiation’ of legal proceedings triggers [a] trust’s in terrorem clause,” the Court of Appeals said that “an in terrorem clause bars an individual from proceeding with an action—even one claiming undue influence.” Id. (citing, among other cases, Norman, 292 Ga. at 354, Norton v. Norton, 293 Ga. 177, 179 (744 SE2d 790) (2013), and Duncan, 345 Ga. App. at 345).

2021Strictly construing the in terrorem clause, which we are obligated to do, Callaway, 321 Ga. App. at 353 (1), and presuming the legislature enacted and amended OCGA § 53-12-22 with knowledge of the existing laws, which we are obligated to do, Howell, 350 Ga. App. at 712 (2), we conclude that the superior court erred in failing to find that the in terrorem clause in Trust #2 resulted in Slosberg’s forfeiture of benefits under Trust #2.

2019See id. at 349, 356 (2) (b), 358-59 (3) (a)-(b), 739 S.E.2d 533 (affirming the trial court's finding that Lucinda, Bryant, and Lee did not violate the Trust's in terrorem clause and remanding for further proceedings). 3 See, e.g. , Kelly v. Harris , 329 Ga. App. 752 , 752, 766 S.E.2d 146 (2014). 4 The remaining evidence necessary to resolve this appeal, viewed in the light most favorable to Callaway, is set forth infra in the relevant divisions. 5 Initially, Callaway submitted two affidavits that he executed.

2020If this provision becomes operative, I direct that any portion of my estate that is involved be added to the residue and be distributed to the remaining beneficiaries, according to this, my Last Will and Testament.7 On August 15, 2015, the probate court held a hearing on the appellees’ petition, after which it made the following rulings: “it denied the petition as to Item IV (the share calculation provision), granted the petition to file a second petition as to Item IX (the in terrorem provision), and granted the petition to file a second petition for the removal of the executor[ ].”8 Specific

2020If this provision becomes operative, I direct that any portion of my estate that is involved be added to the residue and be distributed to the remaining beneficiaries, according to this, my Last Will and Testament.7 On August 15, 2015, the probate court held a hearing on the appellees’ petition, after which it made the following rulings: “it denied the petition as to Item IV (the share calculation provision), granted the petition to file a second petition as to Item IX (the in terrorem provision), and granted the petition to file a second petition for the removal of the executor[ ].”8 Specific

2020The effect of [her] success would leave the will in full force and effect.”44 40 Burkhalter I, 343 Ga. App. at 421 (1); see Sinclair, 284 Ga. at 504 (2) (holding that a beneficiary did not violate an in terrorem clause by filing “a complaint for declaratory judgment, seeking to determine whether he would violate the in terrorem clause by bringing an appropriate action in good faith against Executor for his removal “); Cohen v. Reisman, 203 Ga. 684, 685 ( 48 SE2d 113 ) (1948) (holding that “the trial court properly entered judgment declaring that the plaintiff beneficiary could maintain an acti

2020The effect of [her] success would leave the will in full force and effect.”44 40 Burkhalter I, 343 Ga. App. at 421 (1); see Sinclair, 284 Ga. at 504 (2) (holding that a beneficiary did not violate an in terrorem clause by filing “a complaint for declaratory judgment, seeking to determine whether he would violate the in terrorem clause by bringing an appropriate action in good faith against Executor for his removal “); Cohen v. Reisman, 203 Ga. 684, 685 ( 48 SE2d 113 ) (1948) (holding that “the trial court properly entered judgment declaring that the plaintiff beneficiary could maintain an acti

2020If this provision becomes operative, I direct that any portion of my estate that is involved be added to the residue and be distributed to the remaining beneficiaries, according to this, my Last Will and Testament.7 On August 15, 2015, the probate court held a hearing on the appellees’ petition, after which it made the following rulings: “it denied the petition as to Item IV (the share calculation provision), granted the petition to file a second petition as to Item IX (the in terrorem provision), and granted the petition to file a second petition for the removal of the executor[ ].”8 Specific

2020If this provision becomes operative, I direct that any portion of my estate that is involved be added to the residue and be distributed to the remaining beneficiaries, according to this, my Last Will and Testament.7 On August 15, 2015, the probate court held a hearing on the appellees’ petition, after which it made the following rulings: “it denied the petition as to Item IV (the share calculation provision), granted the petition to file a second petition as to Item IX (the in terrorem provision), and granted the petition to file a second petition for the removal of the executor[ ].”8 Specific

2020In Preuss v. Stokes-Preuss, 275 Ga. 437 ( 569 SE2d 857 ) (2002), the Georgia Supreme Court construed a similar in terrorem clause, which provided that if a “beneficiary of the will” contested the validity of the will or any provision thereof, or institute[d] any proceeding to contest the validity of this will or any provision hereof or to prevent any provision hereof from being carried out in accordance with its terms (whether or not in good faith and whether or not with probable cause), . . . then all the benefits provided for such beneficiary in this will are revoked and annulled.

2020In Preuss v. Stokes-Preuss, 275 Ga. 437 ( 569 SE2d 857 ) (2002), the Georgia Supreme Court construed a similar in terrorem clause, which provided that if a “beneficiary of the will” contested the validity of the will or any provision thereof, or institute[d] any proceeding to contest the validity of this will or any provision hereof or to prevent any provision hereof from being carried out in accordance with its terms (whether or not in good faith and whether or not with probable cause), . . . then all the benefits provided for such beneficiary in this will are revoked and annulled.

2022See also Caswell v. Caswell, 285 Ga. 277, 277-279 & n.3 (675 SE2d 19) (2009) (affirming the trial court’s judgment following a jury verdict that rejected the appellant’s claims that a will was the product of undue influence and lack of capacity, and noting that the trial court reserved the issue of the validity of an in terrorem clause in the will and its effect on the appellant for resolution after the trial); Lillard v. Owens, 281 Ga. 619, 619-622 (641 SE2d 511) (2007) (acknowledging that a will contained an in terrorem clause but holding that the evidence was legally sufficient to sustain t

2022See also Caswell v. Caswell, 285 Ga. 277, 277-279 & n.3 (675 SE2d 19) (2009) (affirming the trial court’s judgment following a jury verdict that rejected the appellant’s claims that a will was the product of undue influence and lack of capacity, and noting that the trial court reserved the issue of the validity of an in terrorem clause in the will and its effect on the appellant for resolution after the trial); Lillard v. Owens, 281 Ga. 619, 619-622 (641 SE2d 511) (2007) (acknowledging that a will contained an in terrorem clause but holding that the evidence was legally sufficient to sustain t

2025In terrorem clause Under Georgia law, a trust instrument or will may include an in terrorem clause, also known as a no-contest clause, which “acts as a disinheritance device to dissuade beneficiaries of a trust or a will from challenging the terms of the instrument.” Slosberg v. Giller, 314 Ga. 89 ( 876 SE2d 228 ) (2022).

2025In terrorem clause Under Georgia law, a trust instrument or will may include an in terrorem clause, also known as a no-contest clause, which “acts as a disinheritance device to dissuade beneficiaries of a trust or a will from challenging the terms of the instrument.” Slosberg v. Giller, 314 Ga. 89 ( 876 SE2d 228 ) (2022).

2022See Norman II, 292 Ga. at 354 (emphasizing that “Decedent’s in terrorem clause becomes operative ‘[s]hould any beneficiary contest or initiate legal proceedings to contest the validity of this Will’” and saying that the appellant’s “initiation of legal proceedings triggered the in terrorem clause”) (emphasis in original); Norton, 293 Ga. at 178 (stating that “[a] challenge to the will’s probate by one named as a taker under the will results in the forfeiture of the ‘entire interest’ that taker would otherwise have under the will” and that “[t]he clear intent [of the will] is that the 40 intere

2022See Norman II, 292 Ga. at 354 (emphasizing that “Decedent’s in terrorem clause becomes operative ‘[s]hould any beneficiary contest or initiate legal proceedings to contest the validity of this Will’” and saying that the appellant’s “initiation of legal proceedings triggered the in terrorem clause”) (emphasis in original); Norton, 293 Ga. at 178 (stating that “[a] challenge to the will’s probate by one named as a taker under the will results in the forfeiture of the ‘entire interest’ that taker would otherwise have under the will” and that “[t]he clear intent [of the will] is that the 40 intere

2022Stating that this Court and the Court of Appeals have concluded in cases involving similar in terrorem clauses that the “mere ‘initiation’ of legal proceedings triggers [a] trust’s in terrorem clause,” the Court of Appeals said that “an in terrorem clause bars an individual from proceeding with an action—even one claiming undue influence.” Id. (citing, among other cases, Norman, 292 Ga. at 354, Norton v. Norton, 293 Ga. 177, 179 (744 SE2d 790) (2013), and Duncan, 345 Ga. App. at 345).

2022Stating that this Court and the Court of Appeals have concluded in cases involving similar in terrorem clauses that the “mere ‘initiation’ of legal proceedings triggers [a] trust’s in terrorem clause,” the Court of Appeals said that “an in terrorem clause bars an individual from proceeding with an action—even one claiming undue influence.” Id. (citing, among other cases, Norman, 292 Ga. at 354, Norton v. Norton, 293 Ga. 177, 179 (744 SE2d 790) (2013), and Duncan, 345 Ga. App. at 345).

2022In March 2019, Defendants filed a motion for judgment on the pleadings, asserting, among other things, that under the Court of Appeals’s whole-court decision in Duncan v. Rawls, 345 Ga. App. 345 (812 SE2d 647) (2018), the in terrorem clause contained in David’s trust instrument barred Plaintiff from raising an undue-influence claim in the first place.

2022In March 2019, Defendants filed a motion for judgment on the pleadings, asserting, among other things, that under the Court of Appeals’s whole-court decision in Duncan v. Rawls, 345 Ga. App. 345 ( 812 SE2d 647 ) (2018), the in terrorem clause contained in David’s trust instrument barred Plaintiff from raising an undue-influence claim in the first place.

2022See also Caswell v. Caswell, 285 Ga. 277, 277-279 & n.3 (675 SE2d 19) (2009) (affirming the trial court’s judgment following a jury verdict that rejected the appellant’s claims that a will was the product of undue influence and lack of capacity, and noting that the trial court reserved the issue of the validity of an in terrorem clause in the will and its effect on the appellant for resolution after the trial); Lillard v. Owens, 281 Ga. 619, 619-622 (641 SE2d 511) (2007) (acknowledging that a will contained an in terrorem clause but holding that the evidence was legally sufficient to sustain t

2022See also Caswell v. Caswell, 285 Ga. 277, 277-279 & n.3 (675 SE2d 19) (2009) (affirming the trial court’s judgment following a jury verdict that rejected the appellant’s claims that a will was the product of undue influence and lack of capacity, and noting that the trial court reserved the issue of the validity of an in terrorem clause in the will and its effect on the appellant for resolution after the trial); Lillard v. Owens, 281 Ga. 619, 619-622 (641 SE2d 511) (2007) (acknowledging that a will contained an in terrorem clause but holding that the evidence was legally sufficient to sustain t

2008See also Fuller v. Fuller, 217 Ga. 316 (1) ( 122 SE2d 234 ) (1961) (whether a beneficiary’s ejectment action forfeited all benefits under an in terrorem clause depended on whether the land was specifically devised by the will to another).

2008See also Fuller v. Fuller, 217 Ga. 316 (1) ( 122 SE2d 234 ) (1961) (whether a beneficiary’s ejectment action forfeited all benefits under an in terrorem clause depended on whether the land was specifically devised by the will to another).

2025Those duties include: a duty of care in administering the trust, 9 James’s trust-related claims include those to set aside the trust, for removal of Christie as trustee, for breach of trust by Christie, and for declaratory judgment that Jason had violated the trust’s in terrorem clause. 9 OCGA § 53-12-241 (a); a duty to “administer the trust solely in the interests of the beneficiaries,” OCGA § 53-12-246 (a); and, unless the trust instrument “clearly manifests an intention that the trustee shall or may favor” certain beneficiaries, a duty to “administer a trust impartially based on what is fai

2025Those duties include: a duty of care in administering the trust, 9 James’s trust-related claims include those to set aside the trust, for removal of Christie as trustee, for breach of trust by Christie, and for declaratory judgment that Jason had violated the trust’s in terrorem clause. 9 OCGA § 53-12-241 (a); a duty to “administer the trust solely in the interests of the beneficiaries,” OCGA § 53-12-246 (a); and, unless the trust instrument “clearly manifests an intention that the trustee shall or may favor” certain beneficiaries, a duty to “administer a trust impartially based on what is fai

2025But we may not rely on that oversight to excuse us from our “statutory duty to discern what errors an appellant is attempting to articulate.” Felix v. State, 271 Ga. 534, 538 ( 523 SE2d 1 ) (1999).

2025But we may not rely on that oversight to excuse us from our “statutory duty to discern what errors an appellant is attempting to articulate.” Felix v. State, 271 Ga. 534, 538 ( 523 SE2d 1 ) (1999).

2025Instead, “[t]he sufficiency of the evidence to authorize a finding of [a violation of the in terrorem clause and breach of fiduciary duty based on the inter vivos powers] must be determined on the basis of that submitted to and considered by the jury, not that which was before the trial court at the time [Calhoun] filed [his] motion for summary judgment.” Cook v. Huff, 274 Ga. 186, 189 (5) ( 552 SE2d 83 ) (2001).

2025Instead, “[t]he sufficiency of the evidence to authorize a finding of [a violation of the in terrorem clause and breach of fiduciary duty based on the inter vivos powers] must be determined on the basis of that submitted to and considered by the jury, not that which was before the trial court at the time [Calhoun] filed [his] motion for summary judgment.” Cook v. Huff, 274 Ga. 186, 189 (5) ( 552 SE2d 83 ) (2001).

2022See also Johnston v. Goss, Case No. 95-6295, 1997 WL 22530, at *10 (10th Cir. Jan. 22, 1997) (vacating the trial court’s grant of summary judgment on the plaintiff’s claim that a trust was procured by undue influence because there were triable issues, and declining to address the question of the application of the in terrorem clause in the trust because “the validity or invalidity of the trust has not been conclusively determined”). 30 a trust or will.

2022See also Johnston v. Goss, Case No. 95-6295, 1997 WL 22530, at *10 (10th Cir. Jan. 22, 1997) (vacating the trial court’s grant of summary judgment on the plaintiff’s claim that a trust was procured by undue influence because there were triable issues, and declining to address the question of the application of the in terrorem clause in the trust because “the validity or invalidity of the [t]rust has not been conclusively determined”). 30 beneficiary successfully voids a trust or will.

2022See generally ROSS & REED, supra, at § 9:10; Tidwell, 248 Ga. at 206-207. 13 There is no question that the trust here met that requirement, because undisputed record evidence shows that the trust instrument said that if the in terrorem clause were violated, the contesting beneficiary’s forfeited benefits would be distributed to the remaining beneficiaries. 22 the lawful formation) of the trust instrument, with the hope of rendering it—and the in terrorem clause contained in it—void.

2022See Slosberg, 341 Ga. App. at 582-583 (holding that there was some evidence to support Plaintiff’s undue-influence claim and reversing the grant of summary judgment to Defendants on the basis that the trust was valid and that Plaintiff had forfeited his benefits under the in terrorem clause). 31 misunderstood the background law and our case law interpreting it, and Defendants repeat those misconceptions in their brief to this Court.

2022See Slosberg, 341 Ga. App. at 582-583 (holding that there was some evidence to support Plaintiff’s undue-influence claim and reversing the grant of summary judgment to Defendants on the basis that the trust was valid and that Plaintiff had forfeited his benefits under the in terrorem clause). 31 and Defendants repeat those misconceptions in their brief to this Court.

2022See also Caswell v. Caswell, 285 Ga. 277, 277-279 & n.3 (675 SE2d 19) (2009) (affirming the trial court’s judgment following a jury verdict that rejected the appellant’s claims that a will was the product of undue influence and lack of capacity, and noting that the trial court reserved the issue of the validity of an in terrorem clause in the will and its effect on the appellant for resolution after the trial); Lillard v. Owens, 281 Ga. 619, 619-622 (641 SE2d 511) (2007) (acknowledging that a will contained an in terrorem clause but holding that the evidence was legally sufficient to sustain t

2022See also Caswell v. Caswell, 285 Ga. 277, 277-279 & n.3 (675 SE2d 19) (2009) (affirming the trial court’s judgment following a jury verdict that rejected the appellant’s claims that a will was the product of undue influence and lack of capacity, and noting that the trial court reserved the issue of the validity of an in terrorem clause in the will and its effect on the appellant for resolution after the trial); Lillard v. Owens, 281 Ga. 619, 619-622 (641 SE2d 511) (2007) (acknowledging that a will contained an in terrorem clause but holding that the evidence was legally sufficient to sustain t

2021Foster v. Morrison, 177 Ga. App. 250, 250 (1) ( 339 SE2d 307 ) (1985). 4 An in terrorem clause is “[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.” Black’s Law Dictionary (10th ed. 2014), pp. 947, 1209. 5 in Trust #2, which provides that benefits revoked under the clause become a part of the remainder of the Trust Estate.

2021Foster v. Morrison, 177 Ga. App. 250, 250 (1) ( 339 SE2d 307 ) (1985). 4 An in terrorem clause is “[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.” Black’s Law Dictionary (10th ed. 2014), pp. 947, 1209. 5 in Trust #2, which provides that benefits revoked under the clause become a part of the remainder of the Trust Estate.

2020Atlanta Rapid Transit Auth., 242 Ga. App. 262, 266 (4) ( 529 SE2d 398 ) (2000) (“Rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant 12 (b) Next, William contends the probate court erred in finding that the in terrorem clause is invalid as to an attack by an heir or beneficiary on the management or expenditures of the Burkhalter Family Trust.

2020Atlanta Rapid Transit Auth., 242 Ga. App. 262, 266 (4) ( 529 SE2d 398 ) (2000) (“Rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant 12 (b) Next, William contends the probate court erred in finding that the in terrorem clause is invalid as to an attack by an heir or beneficiary on the management or expenditures of the Burkhalter Family Trust.

2020And indeed, in Burkhalter I, this Court expressly instructed the probate court that the filing of a declaratory-judgment action regarding the validity of an in terrorem clause “is not itself a violation of the in terrorem clause at issue[.]”27 25 Strange v. Towns, 330 Ga. App. 876, 876 ( 769 SE2d 604 ) (2015) (punctuation omitted). 26 See id. 27 Burkhalter I, 343 Ga. App. at 421 (1). 9 In addition to claiming that the appellees should be disinherited merely for initiating this action, William’s counterclaim complained that the appellees “began this action to remove [e]xecutor[ ] the day after

2020And indeed, in Burkhalter I, this Court expressly instructed the probate court that the filing of a declaratory-judgment action regarding the validity of an in terrorem clause “is not itself a violation of the in terrorem clause at issue[.]”27 25 Strange v. Towns, 330 Ga. App. 876, 876 ( 769 SE2d 604 ) (2015) (punctuation omitted). 26 See id. 27 Burkhalter I, 343 Ga. App. at 421 (1). 9 In addition to claiming that the appellees should be disinherited merely for initiating this action, William’s counterclaim complained that the appellees “began this action to remove [e]xecutor[ ] the day after

2019Thus, she was never provided with notice that the court was going to consider the issue, and a hearing was never conducted so that she could contest the Appellee’s allegation. 4 Forsyth County v. Waterscape Svcs., LLC, 303 Ga. App. 623 ( 694 SE2d 102 ) (2010) (citations and punctuation omitted). 5 Schinazi, 338 Ga. App. at 793 (punctuation and footnote omitted). 9 The Appellee responds that “prior to entry of the [summary judgment] Order, [the Appellee] submitted a proposed order, with a copy via U.S. Mail to Appellant, which included a finding that [McIntyre] had challenged the validity of th

2019See id. at 349, 356 (2) (b), 358-59 (3) (a)-(b), 739 S.E.2d 533 (affirming the trial court's finding that Lucinda, Bryant, and Lee did not violate the Trust's in terrorem clause and remanding for further proceedings). 3 See, e.g. , Kelly v. Harris , 329 Ga. App. 752 , 752, 766 S.E.2d 146 (2014). 4 The remaining evidence necessary to resolve this appeal, viewed in the light most favorable to Callaway, is set forth infra in the relevant divisions. 5 Initially, Callaway submitted two affidavits that he executed.

2019See id. at 349, 356 (2) (b), 358-59 (3) (a)-(b), 739 S.E.2d 533 (affirming the trial court's finding that Lucinda, Bryant, and Lee did not violate the Trust's in terrorem clause and remanding for further proceedings). 3 See, e.g. , Kelly v. Harris , 329 Ga. App. 752 , 752, 766 S.E.2d 146 (2014). 4 The remaining evidence necessary to resolve this appeal, viewed in the light most favorable to Callaway, is set forth infra in the relevant divisions. 5 Initially, Callaway submitted two affidavits that he executed.

2018"On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law." Western Indus. v. Poole , 280 Ga. App. 378 , 379, 634 S.E.2d 118 (2006) (footnote omitted).

2018"On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law." Western Indus. v. Poole , 280 Ga. App. 378 , 379, 634 S.E.2d 118 (2006) (footnote omitted).