Friday, October 18, 2013
An in terrorem clause is not violated by an action to construe a will. In a declaratory judgment action brought by one of the co-executors, the trial court determined that the testator’s will contained a latent ambiguity. The will contained an in terrorem clause which disqualified any beneficiary who attempted “to contest or otherwise pervert the orderly procedure and distribution set out in the will.The court in Strunk v. Lawson, Nos. 2009–CA–001810–MR, 2010–CA–001133–MR, 2010–CA–001195–MR, 2013 WL 3835360 (Ky. Ct. App. July 26, 2013), affirmed the trial court’s construction of the will. Additionally, the court concluded that the in terrorem clause was not violated because a construction action is not an attempt to annul or vacate any part of the will.
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.