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JOHN SALCE v. JOAN CARDELLO
(SC 20701)
Robinson, C. J., and McDonald, D’Auria, Ecker and Alexander, Js.
Syllabus
The plaintiff, who, along with the defendant, was a beneficiary of a will and
a trust executed by their mother, M, appealed to the trial court from
the decision of the Probate Court, which declined the plaintiff’s request
to enforce against the defendant the in terrorem, or no-contest, clauses
contained in M’s will and trust. The in terrorem clauses provided that,
if a beneficiary objected in any manner to any act taken or proposed
to be taken in good faith by any fiduciary, or filed any creditor’s claim
against the estate, that person would forfeit his or her rights as a benefi-
ciary under the respective instrument. After M died, G became the
executor of M’s estate and the trustee of the trust. Subsequently, the
defendant and her attorney became aware of two mistakes that G appar-
ently made in connection with a certain tax return that he had filed on
behalf of the estate. Specifically, G mistakenly listed a bank account
that belonged solely to the defendant as an estate asset, and he improp-
erly inflated the value of the estate and increased the beneficiaries’ tax
burdens by failing to include certain deductions. Although the defendant
and her attorney brought these errors to G’s attention, G declined to
amend the tax return or to make the deductions unless the Probate
Court instructed him to do so. The defendant then filed with the Probate
Court a request for a hearing on those issues, but she later withdrew the
request for unknown reasons. Thereafter, the plaintiff filed a complaint
in the Probate Court, seeking to enforce the in terrorem clauses, which
he alleged the defendant had violated by filing her request for a hearing.
The Probate Court determined, inter alia, that the defendant had not
violated the in terrorem clauses and ordered G to remove the bank
account that belonged to the defendant from the accounting of the
estate’s assets. The plaintiff appealed to the Superior Court, which con-
ducted a trial de novo and found, inter alia, that the defendant had not
violated the in terrorem clauses because she acted in good faith, upon
probable cause, and with reasonable justification when she challenged
G’s actions. Accordingly, the trial court rendered judgment dismissing
the plaintiff’s probate appeal. On appeal to the Appellate Court, that
court affirmed the trial court’s judgment, concluding that, although the
defendant technically had violated the in terrorem clauses by challenging
G’s actions, enforcing those clauses would violate public policy. On the
granting of certification, the plaintiff appealed to this court.
Held that the Appellate Court properly upheld the trial court’s judgment
dismissing the plaintiff’s probate appeal, as the enforcement of the in
terrorem clauses in M’s will and trust would violate public policy by
interfering with the Probate Court’s exercise of its statutorily mandated
supervisory responsibilities over the administration of M’s estate and
its superintendence of G’s performance of his statutory obligations as
a fiduciary:
It was undisputed that the Appellate Court correctly concluded that the
defendant had technically violated the unambiguous language of the in
terrorem clauses in M’s will and trust when she filed a request for a
hearing before the Probate Court to address G’s errors in administering
M’s estate, and, accordingly, this court’s analysis focused on whether
the law provided the defendant with relief from the in terrorem clauses.
A testator may impose conditions on the vesting of his or her estate,
provided the conditions are certain, lawful and not in contravention of
public policy, and, although forfeiture clauses that threaten to dispossess
a beneficiary who challenges the validity or terms of a will or a trust
are generally valid and enforceable, they must be strictly construed
against forfeiture, enforced as written, and interpreted reasonably in
favor of the beneficiary.
Nonetheless, this court had previously recognized an exception to the
general rule of forfeiture when the beneficiary contesting the will or the
trust had a reasonable basis for doing so, on the ground that barring all
contests on penalty of forfeiture, regardless of whether the forfeiture
was based on probable cause, would prevent a court from ascertaining
the truth and cause property to devolve in a manner inconsistent with
both statutory and common law.
Moreover, this court previously had found a forfeiture provision in a
will to be void as a matter of public policy when it conflicted with a
statutory right of appeal, and the protection of statutory remedies as a
matter of public policy is consistent with case law from other states
applying the statutory duty exception to the enforcement of in terrorem
clauses, which recognizes that fiduciaries have certain statutory duties
and obligations that beneficiaries should be able to enforce, and with
the principle in the Restatement (Third) of Trusts that in terrorem clauses
should not be enforced to the extent that doing so would interfere with
the enforcement or the proper administration of a trust.
In the present case, application of the in terrorem clauses in M’s will
and trust implicated various statutory obligations and duties, including
the defendant’s statutory (§§ 45a-98 and 45a-175) right, as a beneficiary,
to seek an accounting, G’s statutory (§ 45a-233 (d)) obligation, as a
fiduciary, to minimize the tax burden of the estate or the trust, and G’s
statutory (§ 45a-242 (a)) obligation, as a fiduciary, not to mismanage
estate assets or to commit waste.
Furthermore, although this court acknowledged that the public policy
exception to the enforcement of in terrorem clauses may interfere with
its policy of construing a will to ascertain and effectuate the testator’s
intent, it nevertheless concluded that the testator’s prerogative to dispose
of his or her property as he or she sees fit must yield to the Probate Court’s
exercise of its power to protect the estate’s assets and emphasized that
the public policy exception protects only those challenges to the actions
of a fiduciary that are brought in good faith.
This court reasoned that such an exception struck the proper balance
between effectuating the settlor’s intent to minimize litigation by way
of a forfeiture provision and enabling beneficiaries to aid the Probate
Court in the exercise of its statutory responsibilities to protect the estate.
In view of the trial court’s supported finding that the defendant’s chal-
lenge to G’s conduct was brought in good faith, this court agreed with
the Appellate Court’s conclusion that G unquestionably had made a
mistake when he listed the defendant’s bank account as an estate asset
and that it would violate public policy to strictly enforce the in terrorem
clauses and thereby preclude the defendant from seeking judicial review
to correct that mistake, without risking forfeiture, despite the potential
impact of such a mistake on the defendant’s finances, the assets of the
estate, and the accuracy of G’s filings with the Probate Court and the state.
(One justice dissenting)
Argued April 26—officially released September 26, 2023
Procedural History
Appeal from the decision of the Probate Court for
the district of Branford-North Branford denying the
plaintiff’s request to enforce certain provisions of a will
and a trust agreement, brought to the Superior Court in
the judicial district of New Haven, where the defendant
filed a counterclaim; thereafter, the case was tried to
the court, Wilson, J.; judgment for the plaintiff on the
defendant’s counterclaim and dismissing the plaintiff’s
appeal, from which the plaintiff appealed to the Appel-
late Court, Bright, C. J., and Elgo and DiPentima, Js.,
which affirmed the trial court’s judgment, and the plain-
tiff, on the granting of certification, appealed to this
court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
William N. Wright, with whom was Michael P. Kae-
lin, for the appellee (defendant).
Opinion
ROBINSON, C. J. In this certified appeal, we consider
the extent to which in terrorem, or no-contest, clauses
in will and trust documents are enforceable against a
beneficiary who has challenged certain aspects of the
performance of a fiduciary, namely, the executor of the
will or the trustee of the trust. The plaintiff, John Salce,
appeals, upon our grant of his petition for certification,1
from the judgment of the Appellate Court, which
affirmed the trial court’s judgment for the defendant,
Joan Cardello, dismissing his probate appeal. See Salce
v. Cardello, 210 Conn. App. 66, 68, 82, 269 A.3d 889
(2022). On appeal, the plaintiff principally contends that
the Appellate Court incorrectly concluded that enforce-
ment of the in terrorem clauses in the decedent’s will
and trust agreement against the defendant would violate
public policy when she challenged the executor’s
refusal (1) to remove her personal bank account from
the estate’s Connecticut estate and gift tax return, and
(2) to deduct the outstanding mortgages from the value
of the estate on the return. Consistent with this court’s
venerable decisions in South Norwalk Trust Co. v. St.
John, 92 Conn. 168, 101 A. 961 (1917), and Griffin v.
Sturges, 131 Conn. 471, 40 A.2d 758 (1944), because
the defendant’s actions were based in good faith, we
conclude that enforcement of the in terrorem clauses
in the present case would violate the public policy
embodied by our statutes requiring probate courts to
supervise fiduciaries. Accordingly, we affirm the judg-
ment of the Appellate Court.
The opinion of the Appellate Court aptly sets forth the
relevant facts, as found by the trial court, and proce-
dural history. ‘‘The plaintiff and the defendant are the
son and daughter, respectively, of Mae Salce (Mae).
Mae was the settlor of the Amended and Restated Mae
Salce Revocable Trust Agreement (trust or trust agree-
ment), which was established on June 29, 2005, and
amended on April 3, 2008. The principal asset of the
trust was Mae’s interest in a piece of real property
known as 113 Buffalo Bay in Madison (Buffalo Bay).
The trust agreement provided that the defendant would
serve as the trustee for the trust until Mae died, at
which time Attorney Jay L. Goldstein would become the
trustee. Pursuant to the terms of the trust agreement,
on December 22, 2005, the defendant, acting as trustee
of the trust, transferred a one-half interest in Buffalo
Bay to herself. The trust agreement further provided
that the defendant would receive the other one-half
interest in Buffalo Bay at the time of Mae’s death. On
the same day that Mae amended the trust, she also
executed her last will and testament. Consistent with
the terms of the trust agreement, article third of the
will provides that all of Mae’s interest in Buffalo Bay
was bequeathed to the defendant. It further provides
that, if the defendant predeceased Mae, Mae’s Interest
in Buffalo Bay would be devised to ‘[the defendant’s]
issue, per stirpes or if there shall be no such issue to
[the plaintiff] if [the plaintiff] shall survive me, [or] if
[the plaintiff] shall not survive me to [the plaintiff’s]
issue, per stirpes.’ In article fourth of her will, Mae
forgave the plaintiff’s obligation to pay any outstanding
amounts due to her pursuant to a December 22, 2001
promissory note in the principal amount of $700,000.2
In article seventh of her will, Mae designated the defen-
dant as the executor of her estate.
‘‘Both the trust agreement and the will contain an in
terrorem clause providing that, if a beneficiary takes
certain actions, he or she forfeits his or her rights as
a beneficiary under the instruments. 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 credi-
tor’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 prede-
ceased [the] [s]ettlor without surviving issue. . . .’ The
in terrorem clause in the will likewise provides in rele-
vant 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 credi-
tor’s claim against my [e]xecutor (without regard to its
validity) or trustee . . . then that person’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. . . .’
‘‘Mae died on April 12, 2012. Thereafter . . .
Goldstein became the trustee of the trust pursuant to
the terms of the trust, as well as the executor of Mae’s
estate, after the defendant declined to serve as the exec-
utor. While administering the estate . . . Goldstein
sent letters to the beneficiaries, including the defendant,
which detailed their required contributions for the pay-
ment of certain taxes and fees incurred by the estate.
The beneficiaries were also permitted to inspect the
Form CT-706/709 Connecticut Estate and Gift Tax
Return (CT-706) that . . . Goldstein had filed on behalf
of the estate. When the defendant reviewed the CT-706,
she noticed that a Citizens Bank account that belonged
solely to her mistakenly had been listed as an asset of
the estate. The defendant’s attorney, Alphonse Ippolito,
also reviewed the CT-706. In doing so, he realized that
. . . Goldstein also had inflated the value of the estate
and increased the beneficiaries’ tax burdens by failing
to deduct two outstanding loans that were secured by
mortgages on Buffalo Bay.3 . . .
‘‘Ippolito raised these apparent errors with . . .
Goldstein, who then asked the defendant to ‘produce
evidence verifying that the income received pursuant
to the mortgages was expended in connection with the
administration of the trust.’ The defendant did so, but
. . . Goldstein still refused to amend the CT-706 either
to remove the Citizens Bank account or to deduct the
outstanding mortgages. . . . Goldstein did, however,
indicate to . . . Ippolito that he would amend the
return if instructed to do so by the Probate Court. The
defendant, on July 30, 2014, filed a request with the
Probate Court for a hearing on these issues but later
withdrew the request for unknown reasons.
‘‘Thereafter, the plaintiff filed a complaint in the Pro-
bate Court [for the district of Branford-North Branford],
alleging that the defendant’s filing of her request for a
hearing, and the issues raised therein, violated the in
terrorem clauses in both the will and the trust agree-
ment. Specifically, the plaintiff argued that the defen-
dant had violated the in terrorem clauses by (1) filing
a creditor’s claim against the estate, and (2) challenging
. . . Goldstein’s refusal to amend the CT-706. Enforce-
ment of the in terrorem clauses as requested by the
plaintiff would cause Mae’s [bequest] of her one-half
interest in Buffalo Bay to the defendant to be nullified
and, pursuant to the terms of her [trust], result in that
interest being bequeathed to the plaintiff. The plaintiff,
on December 17, 2015, also instituted a lawsuit in Supe-
rior Court seeking to invalidate . . . Goldstein’s
December, 2012 transfer by quitclaim deed of the
estate’s interest in Buffalo Bay to the defendant pursu-
ant to the will and trust. In response to the plaintiff’s
complaint in the Probate Court, the defendant claimed
that the plaintiff had violated the in terrorem clauses
by delaying the administration of the estate and by
instituting the Superior Court action seeking to invali-
date the transfer of the estate’s remaining interest in
Buffalo Bay to the defendant.
‘‘Following a hearing, the Probate Court concluded
that neither the plaintiff nor the defendant had violated
the in terrorem clauses. Furthermore, the Probate Court
concluded that . . . Goldstein had erred in including
the Citizens Bank account in the estate’s assets and
ordered that it be removed from the accounting.’’ (Foot-
notes in original.) Salce v. Cardello, supra, 210 Conn.
App. 68–71.
‘‘The plaintiff appealed from the Probate Court’s
refusal to enforce the in terrorem clauses against the
defendant to the Superior Court, pursuant to General
Statutes § 45a-186 (b). The defendant then filed a coun-
terclaim in that appeal, alleging that the plaintiff had
violated the in terrorem clauses by instituting the
December 17, 2015 action to invalidate . . . Gold-
stein’s transfer of the estate’s interest in Buffalo Bay
to the defendant pursuant to the will and the trust.
‘‘The [trial court] held a five day trial de novo on
the plaintiff’s appeal and the defendant’s counterclaim.
Thereafter, the court issued a memorandum of decision,
in which it concluded that neither party had violated
the in terrorem clauses. With regard to the defendant,
specifically, the court concluded that she had not vio-
lated the clauses because she (1) never filed a creditor’s
claim against the estate, and (2) acted in good faith,
upon probable cause, and with reasonable justification
when challenging . . . Goldstein’s actions in adminis-
tering the estate and the trust, thus excusing any viola-
tions of the in terrorem clauses.’’ (Footnotes omitted.)
Id., 72. Accordingly, the trial court rendered judgment
dismissing the plaintiff’s probate appeal, and for the
plaintiff on the defendant’s counterclaim. See id., 68,
72 and n.5.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court, claiming, inter alia,4 that
‘‘the defendant violated the in terrorem clauses when
she challenged . . . Goldstein’s refusal (1) to remove
her Citizens Bank account from the estate’s CT-706,
and (2) to deduct the outstanding mortgages from the
value of the estate.’’ Id., 77. The Appellate Court agreed
with the plaintiff’s argument that ‘‘the defendant techni-
cally violated both clauses when she challenged . . .
Goldstein’s actions’’; id., 78; but relied on this court’s
decisions in South Norwalk Trust Co. v. St. John, supra,
92 Conn. 176–77, Griffin v. Sturges, supra, 131 Conn.
482–83, and Peiter v. Degenring, 136 Conn. 331, 335,
71 A.2d 87 (1949), along with sister state decisions in
Sinclair v. Sinclair, 284 Ga. 500, 502–503, 670 S.E.2d
59 (2008), and In re Estate of Wojtalewicz, 93 Ill. App.
3d 1061, 1063, 418 N.E.2d 418 (1981), to conclude that
‘‘application of the clear and unambiguous language of
the in terrorem clauses punishes the beneficiaries of
the estate and the trust [insofar as it prevents them]
from objecting to any actions of the trustee, including
nondiscretionary, ministerial acts. Because such a
clause undermines important private and public inter-
ests with no corresponding benefit, it violates public
policy.’’ Salce v. Cardello, supra, 210 Conn. App. 80–81;
see id., 80 (noting ‘‘significant’’ and ‘‘important’’ inter-
ests of beneficiaries and state in ensuring correct tax
payments). Thus, the Appellate Court concluded that,
‘‘although the defendant technically violated both in
terrorem clauses when she challenged . . .
Goldstein’s actions in administering the estate and the
trust, enforcing the clauses as written would violate
public policy.’’ Id., 82. Given this conclusion, the Appel-
late Court declined to decide whether the good faith and
probable cause exception articulated in South Norwalk
Trust Co. v. St. John, supra, 176–77, applied in this case
‘‘because the clauses are unenforceable even in the
absence of such an exception.’’ Salce v. Cardello, supra,
78. Accordingly, the Appellate Court affirmed the judg-
ment of the trial court. Id., 82. This certified appeal
followed. See footnote 1 of this opinion.
We begin with the first certified question, namely,
whether the defendant’s actions constituted a violation
of the in terrorem clauses, which is easily resolved. It
is undisputed that the Appellate Court correctly con-
cluded that the defendant had ‘‘technically violated’’
the unambiguous language of both in terrorem clauses,
which ‘‘makes [it] clear that all challenges to any actions
taken by . . . Goldstein constitute a violation of the
in terrorem clauses,’’ when she ‘‘filed an application
and request for a hearing before the Probate Court, in
which she challenged . . . Goldstein’s preparation of
the CT-706 . . . .’’ Salce v. Cardello, supra, 210 Conn.
App. 78–79; see, e.g., Schwerin v. Ratcliffe, 335 Conn.
300, 309–10, 238 A.3d 1 (2020) (observing that ‘‘[t]he
cardinal rule of testamentary construction’’ is to ascer-
tain and effectuate settlor’s intent as expressed in lan-
guage of instrument, particularly if language is clear and
unambiguous). Thus, our analysis turns to the second
certified question and whether the law provides the
defendant some relief from those provisions.
The plaintiff argues with respect to the second certi-
fied question that, because the Uniform Probate Code
does not govern; see Schwerin v. Ratcliffe, supra, 335
Conn. 317 n.14; in terrorem clauses are enforceable in
Connecticut, which, as the plaintiff points out, protects
‘‘the absolute right of a testator to dispose of his [or
her] property as he or she sees fit . . . .’’ The plaintiff
contends that the in terrorem clauses in this case did
not preclude all court challenges but, instead, barred
only those that would challenge the good faith actions
of the fiduciary, which ‘‘mitigate[s]’’ the public policy
concerns expressed by the Appellate Court as a reason
for not enforcing the in terrorem clauses in this case.
The plaintiff argues that ‘‘[n]o Connecticut case appears
to have applied the so-called public policy exception
to claims against the good faith actions of the fiduciary’’
and contends that this court’s decision in Peiter v.
Degenring, supra, 136 Conn. 331, on which the Appel-
late Court relied, does not relate to in terrorem clauses.
Ultimately, the plaintiff argues that ‘‘[t]he Appellate
Court’s decision creates an exception to Connecticut’s
rule [of] enforc[ing] no-contest clauses that has not
previously been adopted in Connecticut . . . [and that
does not] appear to be recognized in any other state,’’
which ‘‘is inconsistent with Connecticut’s public policy
and law [of] enforc[ing] the clear terms of a testator’s
or settlor’s documents.’’
In response, the defendant contends that the Appel-
late Court properly held that it would violate public
policy for ‘‘a beneficiary [to] be disinherited through
the enforcement of an in terrorem clause for raising
before the Probate Court and seeking to correct the
clear-cut and ministerial errors of the fiduciary in his
administration of an estate and a trust.’’5 Relying on
South Norwalk Trust Co. v. St. John, supra, 92 Conn.
176–77, Griffin v. Sturges, supra, 131 Conn. 482–83, and
Peiter v. Degenring, supra, 136 Conn. 335, the defendant
argues that the in terrorem clauses are unenforceable
under the circumstances of the present case because
their enforcement ‘‘would have the effect of penalizing
[her] for seeking to correct . . . Goldstein’s mistakes
in the preparation of the CT-706,’’ as well as for
‘‘objecting to, for example, the discretionary investment
decisions by a fiduciary . . . .’’ As sources of ‘‘public
policy in favor of the correct administration of an estate
or a trust by a fiduciary,’’ the defendant relies on (1) a
beneficiary’s right to seek an accounting in the Probate
Court under General Statutes §§ 45a-98 and 45a-175,6
(2) the fiduciary’s obligations under General Statutes
§ 45a-233 (d)7 to minimize the tax burden of the estate
or trust, and (3) a fiduciary’s obligation under General
Statutes § 45a-242 (a)8 ‘‘not to mismanage estate assets
or commit waste.’’ Observing that Goldstein ‘‘effectively
invited’’ her to seek intervention by the Probate Court
after ‘‘refus[ing] to correct his errors [in the absence
of] a court order,’’ the defendant emphasizes that appli-
cation of the in terrorem clauses in the way advocated
by the plaintiff would ‘‘have the effect of barring the
defendant from seeking redress in the courts to correct
the fiduciary’s mistakes on the [CT-706], namely, the
erroneous inclusion of the Citizens [Bank] account and
the failure to account for the two loans in the value of
the estate.’’9 We agree with the defendant and conclude
that the Appellate Court correctly determined that
enforcement of the in terrorem clauses in this case
would violate public policy.
‘‘An appeal from a Probate Court to the Superior
Court is not an ordinary civil action. . . . When enter-
taining an appeal from an order or decree of a Probate
Court, the Superior Court takes the place of and sits
as the court of probate. . . . In ruling on a probate
appeal, the Superior Court exercises the powers, not
of a constitutional court of general or [common-law]
jurisdiction, but of a Probate Court. . . . [When], as in
the present case, no record was made of the probate
proceedings, the Superior Court was required to under-
take a de novo review of the Probate Court’s decision.’’
(Citation omitted; internal quotation marks omitted.)
Hynes v. Jones, 175 Conn. App. 80, 92–93, 167 A.3d 375
(2017), rev’d on other grounds, 331 Conn. 385, 204 A.3d
1128 (2019); see General Statutes § 45a-186 (b) through
(d); Andrews v. Gorby, 237 Conn. 12, 15–16, 675 A.2d
449 (1996); see also In re Probate Appeal of Harris,
214 Conn. App. 596, 600–601, 282 A.3d 467 (discussing
more limited standard of review set forth in General
Statutes § 45a-186b for ‘‘appeals taken under . . .
§ 45a-186 from a matter heard on the record in the
Probate Court’’ (footnote omitted)), cert. denied, 345
Conn. 918, 284 A.3d 299 (2022). Because the trial court
and the Appellate Court considered issues of law, our
review on appeal is plenary. See, e.g., Hynes v. Jones,
supra, 93.
‘‘A testator may impose such conditions as he pleases
[on] the vesting or enjoyment of the estate he leaves,
provided they are certain, lawful and not opposed to
public policy.’’ Peiter v. Degenring, supra, 136 Conn.
335. This includes in terrorem, or no-contest, clauses,
which are defined as ‘‘provision[s] designed to threaten
one into action or inaction; [especially], a testamentary
provision that threatens to dispossess any beneficiary
who challenges the terms of the will.’’ Black’s Law Dic-
tionary (11th Ed. 2019) p. 1258; accord McGrath v. Gal-
lant, 143 Conn. App. 129, 132 n.1, 69 A.3d 968 (2013). As
the Appellate Court recognized, the leading Connecticut
decision with respect to in terrorem clauses is this
court’s 1917 opinion in South Norwalk Trust Co. v. St.
John, supra, 92 Conn. 168, which was a will contest.
See, e.g., Salce v. Cardello, supra, 210 Conn. App. 74,
81. In South Norwalk Trust Co., this court noted that
‘‘[s]ubstantially all authorities agree that a testator may
in some cases impose [on] a [beneficiary] a condition
forfeiting his legacy if he contest[s] the validity of the
will.’’ South Norwalk Trust Co. v. St. John, supra, 174;
see id., 174–75 (recognizing distinction drawn by English
courts of equity, but rejected by majority of American
courts, which enforced conditions ‘‘as to legacies of
personal property, but not as to devises of land’’). This
court further observed that, because ‘‘the testator may
attach any condition to his gift [that does not violate]
law or public policy, the [beneficiary] must either take
the gift with its conditions or reject it. The disposition
of these authorities has been to sustain 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.’’10 Id., 175.
Nevertheless, it is black letter law that such in ter-
rorem provisions ‘‘must be strictly construed against
forfeiture, enforced as written, and interpreted reason-
ably in favor of the beneficiary. No wider scope can be
given to the [verbiage] employed than is plainly required;
nor may the court place a strained or overly technical
construction [on] the language. Forfeiture provisions
in a will are to be strictly construed, and forfeiture [is
to be] avoided if possible. Testamentary dispositions
are presumed to vest at the testator’s death, and cannot
be divested unless the precise contingency prescribed
by the testator occurs. It is only [when] the acts of the
parties fall strictly within the express terms of the puni-
tive clause of the will that a breach may be declared.’’
(Footnotes omitted.) In re Estate of Westfahl, 674 P.2d
21, 24 (Okla. 1983); see, e.g., 80 Am. Jur. 2d, Wills § 1323
(2023) (‘‘[a]s a general rule, such clauses are valid but
are construed strictly and without extension beyond
their express terms’’ (footnote omitted)).
In South Norwalk Trust Co. v. St. John, supra, 92
Conn. 168, this court considered various exceptions to
this ‘‘general rule of forfeiture . . . .’’11 Id., 175–76. Of
particular relevance to this appeal, this court consid-
ered the ‘‘exception that a contest for which there is a
reasonable ground will not work a forfeiture . . . .’’
Id., 176. The court observed that, although it was a
minority view at the time, it was the ‘‘better reason[ed]’’
position because it ‘‘rests [on] a sound public policy.
The law prescribes who may make a will and how it
shall be made; that it must be executed in a named
mode, by a person having testamentary capacity and
acting freely, and not under undue influence. The law
is vitally interested in having property transmitted by
will under these conditions, and [no] others.’’ Id. The
court posited that ‘‘only [those] who have an interest
in the will . . . will have the disposition to lay the facts
before the court. If they are forced to remain silent,
upon penalty of forfeiture of a legacy or devise given
them by the will, the court will be prevented by the
command of the testator from ascertaining the truth;
and the devolution of property will be had in a manner
against both statutory and common law. Courts exist
to ascertain the truth and to apply the law to it in any
given situation; and a right of devolution [that] enables
a testator to shut the door of truth and prevent the
observance of the law, is a mistaken public policy. If,
on contest, the will would have been held invalid, the
literal interpretation of the forfeiture provision has sup-
pressed the truth and impeded the true course of justice.
If the will should be held valid, no harm has been done
through the contest, except the delay and the attendant
expense.’’ (Emphasis added.) Id., 176–77. The court
emphasized that ‘‘[t]he effect of broadly interpreting a
forfeiture clause as barring all contests on penalty of
forfeiture, whether made [upon] probable cause or not,
will furnish those who would profit by a will procured
by undue influence, or made by one lacking testamen-
tary capacity, with a helpful cover for their wrongful
designs.’’ Id., 177. Thus, the court reiterated that, given
the aid furnished to the court by the good faith chal-
lenger, ‘‘[t]he contest will not defeat the valid will, but
it may, as it ought, the invalid will.’’ Id. ‘‘[When] the
contest has not been made in good faith, and upon
probable cause and reasonable justification, the forfei-
ture should be given full operative effect. [When] the
contrary appears, the [beneficiary] ought not to forfeit
his legacy.’’ Id.; see id., 178 (This court deemed the
good faith exception inapplicable because ‘‘[t]he facts
of record [were] silent as to whether this contest was
begun in good faith, and whether there was probable
cause and reasonable justification. The stipulated facts
[did] not bring the case within this exception.’’).
With respect to the public policy issues presented
by the second certified question, we find particularly
instructive this court’s decision in Griffin v. Sturges,
supra, 131 Conn. 471. In Griffin, the court first upheld
the validity of a will provision that both required the
testator’s son to ‘‘give up and refrain from the use of
intoxicating liquor’’ in order ‘‘to receive the income
from the entire estate’’ and left to the Probate Court
the factual determination of whether the son complied
with that provision. Id., 480, 482; see id., 482 (emphasiz-
ing duty of ‘‘the trustee under the will . . . to account
to the Probate Court, which [had] jurisdiction over the
settlement of his account’’). Significantly, though, this
court invalidated that provision to the extent it rendered
‘‘the order of the [Probate Court] . . . conclusive and
[provided that] no appeal shall be allowed . . . .’’
(Emphasis added.) Id., 482. This court held that ‘‘this
incidental provision’’ of the clause was void as a matter
of public policy; id., 483; because it was ‘‘contrary to
the statutes giving a right of appeal from any decree of a
Court of Probate to the Superior Court . . . .’’ (Citation
omitted.) Id., 482–83.
Several more recent sister state decisions are consis-
tent with Griffin’s protection of statutory remedies as
a matter of public policy, particularly insofar as in ter-
rorem clauses directed at challenges to fiduciary con-
duct implicate public policy concerns different from
those directed at document formation; this is particu-
larly so in the trust context of the present case. See D.
Gordon, ‘‘Forfeiting Trust,’’ 57 Wm. & Mary L. Rev. 455,
508–512 (2015). These cases are consistent with what
has been described as ‘‘the statutory duty exception’’
to the enforcement of in terrorem clauses; M. Begleiter,
‘‘Anti-Contest Clauses: When You Care Enough To Send
the Final Threat,’’ 26 Ariz. St. L.J. 629, 652 n.149 (1994);
see id., 652–53; because an ‘‘executor has a statutory
duty to account that the beneficiaries can and should
enforce,’’ with ‘‘[o]bjections to the fiduciary’s account-
ing on the ground of mismanagement, delay or other
failure not violating a no-contest clause’’ being ‘‘one
common example . . . .’’ Id., 670. The cases are also
consistent with § 96 (2) of the Restatement (Third) of
Trusts, which provides that ‘‘[a] no-contest clause shall
not be enforced to the extent that doing so would inter-
fere with the enforcement or proper administration of
the trust.’’ 4 Restatement (Third), Trusts § 96 (2), p.
28 (2012); see id., comment (e), pp. 31–32 (describing
relationship between provision, which permits attacks
on exercise of trustee’s discretion, and in terrorem
clauses oriented toward more traditional will contests).
With respect to these statutory duty cases, we deem
especially persuasive the Georgia Supreme Court’s deci-
sion in Sinclair v. Sinclair, supra, 284 Ga. 500. In Sin-
clair, the court considered whether an in terrorem
clause would cause a beneficiary to forfeit his interest
under a will by bringing an action for an accounting
and the removal of the executor. Id., 501. In addition
to strictly construing the clause not to ‘‘amount to a
contest of the will by objecting to its probate,’’ the
court further held that ‘‘it would violate public policy
to construe the condition in terrorem so as to require
the forfeiture of a beneficiary’s interest for bringing an
action for accounting and removal of the executor.’’
(Internal quotation marks omitted.) Id., 502. The court
emphasized that, ‘‘[a]fter a will has been admitted to
probate, certain duties and obligations are thereupon
imposed by law on the named executor. He has no
arbitrary powers to avoid the provisions of a will [that]
he is appointed to execute, and the provision . . .
being considered cannot be construed to confer any
such unbridled authority. The executor, therefore,
remains amenable to law in all his acts and doings as
such, and a beneficiary under the will, in seeking to
compel the performance . . . of his duty, will not be
penalized for so doing.’’ (Internal quotation marks omit-
ted.) Id., 502–503. The court concluded that ‘‘a condition
in terrorem cannot make an executor unanswerable for
any violations of the will or of the laws governing per-
sonal representatives in Georgia. A beneficiary assuredly
is empowered to enforce the provisions of a [will], no
matter the terms of any in terrorem clause.’’ (Internal quo-
tation marks omitted.) Id., 503.
Similarly, in In re Estate of Wojtalewicz, supra, 93
Ill. App. 3d 1061, the Illinois Appellate Court concluded
that the in terrorem clause of a will clearly and unambig-
uously expressed the testator’s intent to ‘‘[forbid] any
proceeding to challenge any of the provisions of the
will,’’ including its provision naming the executor.
(Emphasis omitted.) Id., 1062. The court concluded,
however, that enforcement of the in terrorem clause
‘‘would violate the law and public policy of [Illinois].
First, it would deprive [the putative beneficiary] of his
statutory right . . . to request the court to deny the
appointment of the executor for the latter’s failure to
initiate a proceeding to have the will admitted to probate
within [thirty] days of acquiring knowledge of being
named as executor in the will.’’ (Citation omitted.) Id.,
1063. The court emphasized that ‘‘it would violate public
policy to give effect to the in terrorem clause [because]
its enforcement would endanger the assets of the estate.
Courts closely scrutinize an executor’s behavior to
[ensure] that the standards of fair dealings and diligence
of an executor toward the estate are adhered to. . . .
It is the duty of the executor to properly manage the
estate and protect it from [wilful] waste. . . . The
[putative beneficiary] sought to deny the appointment
of the executor on grounds that the executor’s lengthy
period of inaction and his failure to file proper tax
returns caused the estate to incur substantial penalties.’’
(Citations omitted.) Id. The court concluded that ‘‘a
[beneficiary] under [the] will . . . [could not] be terror-
ized into relinquishing his legacy by any threat of forfei-
ture. Otherwise, he would be forced to stand by silently
while the executor jeopardizes the assets of the estate.
[The court would] not allow this result, because it per-
mits the estate to be subject to waste and thereby dimin-
ishes the desired share of each beneficiary chosen by
the testator under her will.’’ Id., 1064; see In re Estate
of Ferber, 66 Cal. App. 4th 244, 253, 77 Cal. Rptr. 2d 774
(1998) (‘‘The power of the court is invoked in probate
matters, at least in substantial measure, to protect the
estate and [to] ensure its assets are properly protected
for the beneficiaries. [No-contest] clauses that purport
to insulate executors completely from vigilant benefici-
aries violate the public policy behind court supervi-
sion.’’); In re Estate of Prevratil, 121 App. Div. 3d 137,
148, 990 N.Y.S.2d 697 (2014) (given narrow construction
of no-contest clauses, declining to ‘‘conclude that [the]
decedent intended to preclude [the] petitioners from
seeking letters of administration in the face of the
named fiduciaries’ inaction,’’ and observing that, ‘‘even
if [the] decedent’s intent were to prohibit a beneficiary
from questioning the conduct of a nominated fiduciary,
such a broad [no-contest] clause would be void’’ under
statutes governing fiduciaries); Barr v. Dawson, 158
P.3d 1073, 1076 (Okla. Civ. App. 2006) (discussing case
law holding that spousal election does not invoke no-
contest clause for public policy reasons), cert. denied,
Oklahoma Supreme Court, Docket No. SD-103371 (Feb-
ruary 27, 2007); see also Redman-Tafoya v. Armijo,
138 N.M. 836, 848–51, 126 P.3d 1200 (App. 2005) (claims
for disinheritance and removal of executor were statu-
torily authorized and did ‘‘not constitute contests’’ for
purposes of broad in terrorem clause).
We conclude, therefore, that an in terrorem clause
violates public policy when its application would inter-
fere with the Probate Court’s exercise of its statutorily
mandated supervisory responsibilities over the adminis-
tration of an estate and its superintendence of the fidu-
ciary’s statutory obligations. As the defendant argues,
the in terrorem clauses in this case implicate the Pro-
bate Court’s supervision over the fiduciary via the
accounting process under § 45a-175, which may be
invoked at the request of a beneficiary. See footnote 6
of this opinion. In connection with that accounting,
the Probate Court was called on to consider whether
Goldstein had properly discharged his responsibilities
to minimize the estate’s tax burden under § 45a-233 (d)
and his broader obligation under § 45a-242 (a) not to
mismanage estate assets or to commit waste. See foot-
notes 7 and 8 of this opinion.
We acknowledge the plaintiff’s argument that this
public policy exception interferes with a different public
policy, namely, ‘‘enforc[ing] the clear terms of a testa-
tor’s or settlor’s documents.’’ See, e.g., Derblom v. Arch-
diocese of Hartford, 346 Conn. 333, 347, 289 A.3d 1187
(2023) (‘‘[the] primary objective in construing . . . [a]
will is to ascertain and effectuate [the testator’s] intent’’
(internal quotation marks omitted)). Although we
acknowledge that clauses barring review of the fiduciary’s
actions are different in kind from contests that attack
the underlying validity of the will or trust document,
consistent with discussion at oral argument before this
court, we nevertheless conclude that the testator’s pre-
rogative to dispose of his or her property as he or she
sees fit must yield to the Probate Court’s exercise of
its power to protect the assets of the estate, which
would be impinged if a beneficiary risks disinheritance
by bringing, in good faith, potential tax return errors
to the attention of the Probate Court. Indeed, as the
plaintiff’s counsel acknowledged before this court at
oral argument, the defendant permissibly could have
avoided these potential disinheritance issues by waiting
for a hearing on the accounting, rather than raising the
issue more proactively. This amounts to a matter of
form that would scarcely justify disinheritance as a
matter of public policy, especially because the good
faith participation of the beneficiary is an important
aspect of facilitating the responsibility of the court
under § 45a-175. See In re Estate of Ferber, supra, 66
Cal. App. 4th 253–54 (The court acknowledged that it
‘‘may have the primary responsibility to monitor an
executor’s actions’’ but observed that, ‘‘as a practical
matter, the courts lack the resources to scrutinize every
matter for executor malfeasance. They must rely on
beneficiaries to be aware of the facts and raise cogent
points.’’). Put differently, the ‘‘power of the court is
invoked in probate matters, at least in substantial mea-
sure, to protect the estate and [to] ensure its assets
are properly protected for the beneficiaries. No contest
clauses that purport to insulate executors completely
from vigilant beneficiaries violate the public policy
behind court supervision.’’ (Emphasis added.) Id., 253.
We emphasize, however, that this statutory duty and
public policy exception protects only those challenges
to the actions of a fiduciary that are brought in good
faith. Consistent with this court’s decision in South
Norwalk Trust Co. v. St. John, supra, 92 Conn. 176–77,
allowing for enforcement of in terrorem clauses against
beneficiaries whose challenges to the actions of the
fiduciary are found to be brought in bad faith or frivo-
lously balances effectuating the settlor’s intent to mini-
mize litigation with enabling beneficiaries to aid the
Probate Court in the exercise of its statutory responsi-
bilities to protect the estate. See In re Estate of Ferber,
supra, 66 Cal. App. 4th 254 (adopting ‘‘a balancing pro-
cess’’ to protect salutary features of no-contest clause,
including discouraging litigation and protecting the tes-
tator’s intent, by ‘‘enforcing [no-contest] clauses against
beneficiaries who attempt to oust the executor with a
frivolous challenge,’’ while allowing ‘‘beneficiaries who
believe an executor is engaged in misconduct to bring
the potential malfeasance to the court’s attention with-
out fear of being disinherited, furthering the public pol-
icy of eliminating errant executors’’); D. Gordon, supra,
57 Wm. & Mary L. Rev. 463 (proposing burden-shifting
scheme that merges probable cause, good faith stan-
dard with public policy concerns as ‘‘a more coherent
and balanced approach to trust forfeiture clauses’’ that
recognizes ‘‘the settlor’s interest in facilitating a smooth
relationship between [his or] her fiduciar[ies] and bene-
ficiaries without forfeiting the precious oversight that
allows trusts to function properly’’). But see In re Estate
of Prevratil, supra, 121 App. Div. 3d 148 (concluding
that no-contest clauses precluding challenges of fiducia-
ry’s actions are per se void and that such challenges
need not be based on probable cause because neither
case law nor statutory provisions impose probable
cause requirement). Put differently, a finding that a
challenge to a fiduciary’s action was brought in bad
faith or is frivolous means that the statutory duty excep-
tion will not, as a matter of public policy, shield the
challenging beneficiary from the operation of an appli-
cable in terrorem clause.
Given the trial court’s supported finding that the
defendant’s challenge to Goldstein’s filings was brought
in good faith, we agree with the Appellate Court’s con-
clusion that ‘‘Goldstein unquestionably made a mistake
when he listed the defendant’s Citizens Bank account
as an asset of the estate. In strictly complying with the
in terrorem clauses, however, the defendant could not
seek judicial review to correct that mistake, without
risking forfeiture, despite its potential impact on her
finances, the assets of the estate, and the accuracy of
. . . Goldstein’s filings with the Probate Court and the
state of Connecticut. Such a result would violate public
policy.’’ (Footnote omitted.) Salce v. Cardello, supra,
210 Conn. App. 81. We conclude, therefore, that the
Appellate Court properly affirmed the judgment of the
trial court.12
The judgment of the Appellate Court is affirmed.
In this opinion McDONALD, ECKER and ALEXAN-
DER, Js., concurred.
1
We granted the plaintiff’s petition for certification to appeal, limited to
the following issues: (1) ‘‘Did the Appellate Court correctly conclude that
the defendant had violated the in terrorem clauses in the decedent’s will
and trust agreement when the defendant challenged the trustee’s refusal
(1) to remove her bank account from the estate’s Connecticut estate and
gift tax return, and (2) to deduct the outstanding mortgages from the value
of the estate?’’ Salce v. Cardello, 343 Conn. 902, 272 A.3d 657 (2022).
(2) ‘‘If the answer to the first question is ‘yes,’ did the Appellate Court
correctly conclude that enforcement of the in terrorem clauses in the dece-
dent’s will and trust agreement would violate public policy and that the
clauses, therefore, were unenforceable as to the defendant’s conduct?’’ Id.
And (3) ‘‘[i]f the answer to the second question is ‘no,’ does the good
faith exception to the enforcement of in terrorem clauses apply in this
case?’’ Id.
2
‘‘The will describes the payee of the promissory note as Mae’s deceased
husband, John J. Salce.’’ Salce v. Cardello, supra, 210 Conn. App. 69 n.1.
3
‘‘In her role as trustee, the defendant took out two loans that were
secured by mortgages on Buffalo Bay so that she could pay for expenses
related to the property.’’ Salce v. Cardello, supra, 210 Conn. App. 70 n.2.
4
The plaintiff also claimed on appeal that the defendant had violated the
in terrorem clauses of the will and the trust by filing a creditor’s claim
against the estate. See Salce v. Cardello, supra, 210 Conn. App. 74. The
Appellate Court held that the trial court’s finding that there was no creditor’s
claim was not clearly erroneous because there was no evidence that the
defendant had ever made a written demand for payment or reimbursement
to Goldstein as contemplated by General Statutes §§ 45a-353 (d) and (e)
and 45a-358 (a). See id., 75–76. The plaintiff does not challenge the Appellate
Court’s conclusion in this respect in this certified appeal, and we need not
consider it further.
5
Implicating the third certified question; see footnote 1 of this opinion;
the defendant also argues that, ‘‘even if the subject in terrorem clause is
not unenforceable as against public policy, the defendant’s actions here
would be subject to the long recognized good faith exception to the enforce-
ment of in terrorem clauses because her efforts to correct the fiduciary’s
mistakes were taken in good faith and upon probable cause.’’ See South
Norwalk Trust Co. v. St. John, supra, 92 Conn. 176–77. Given our conclusion
as to the second certified question, we, like the Appellate Court, need not
reach the defendant’s arguments as to the third certified question. See also
footnote 12 of this opinion.
6
General Statutes § 45a-175 provides in relevant part: ‘‘(a) Probate Courts
shall have jurisdiction of the interim and final accounts of testamentary
trustees, trustees appointed by the Probate Courts, conservators, guardians,
executors and administrators, and, to the extent provided for in this section,
shall have jurisdiction of accounts of the actions of trustees of inter vivos
trusts and agents acting under powers of attorney.
‘‘(b) A trustee or settlor of an inter vivos trust or the successor of the
trustee, settlor or his or her legal representative may petition a Probate
Court specified in section 45a-499p for submission to the jurisdiction of the
court of an account for allowance of the trustee’s actions under such trust.
‘‘(c) (1) Any beneficiary of an inter vivos trust may petition a Probate
Court specified in section 45a-499p for an accounting by the trustee or
trustees. . . .’’
General Statutes § 45a-98 (a) (6) provides in relevant part that probate
courts, ‘‘to the extent provided for in section 45a-175, [may] call executors,
administrators, [and] trustees . . . to account concerning the estates
entrusted to their charge . . . .’’
7
General Statutes § 45a-233 (d) provides in relevant part: ‘‘No discretion-
ary power or authority conferred upon a fiduciary as provided in sections
45a-233 to 45a-236, inclusive, may be exercised by such fiduciary in such a
manner as, in the aggregate, to deprive the trust or the estate involved of
an otherwise available tax exemption, deduction or credit . . . except as
otherwise prescribed by the testator or settlor, or operate to attract or
impose a tax upon a settlor or estate of a testator or upon any other person
as owner of any portion of the trust or estate involved. . . . The exercise
of a power in violation of the restriction contained in this subsection shall
render the action by the fiduciary or any other person with regard to that
violation void. ‘Tax’ means a federal, state, whether that of Connecticut,
another state or territory of the United States, the District of Columbia or
the Commonwealth of Puerto Rico, local, municipal or foreign, whether
national, provincial, state, local or municipal, income, gift, estate, generation-
skipping, inheritance, succession, accessions or other death tax, duty or
excise imposed on the transfer of property at death or by gift. . . .’’
8
General Statutes § 45a-242 (a) provides in relevant part: ‘‘The Probate
Court having jurisdiction may, upon its own motion or upon the petition of
any person interested or of the surety upon the fiduciary’s probate bond,
after notice and hearing, remove any fiduciary if: (1) The fiduciary becomes
incapable of executing such fiduciary’s trust, neglects to perform the duties
of such fiduciary’s trust, wastes the estate in such fiduciary’s charge, or
fails to furnish any additional or substitute probate bond ordered by the
court, (2) lack of cooperation among cofiduciaries substantially impairs
the administration of the estate, (3) because of unfitness, unwillingness or
persistent failure of the fiduciary to administer the estate effectively, the
court determines that removal of the fiduciary best serves the interests of
the beneficiaries, or (4) there has been a substantial change of circumstances
or removal is requested by all of the beneficiaries, the court finds that
removal of the fiduciary best serves the interests of all the beneficiaries
and is not inconsistent with a material purpose of the governing instrument
and a suitable cofiduciary or successor fiduciary is available. . . .’’
9
The defendant argues that the plaintiff’s reliance on the clause language
seeking only to insulate the ‘‘good faith’’ actions of the fiduciary from chal-
lenge is ineffectual in this respect because it ‘‘would still prohibit a benefi-
ciary from seeking to correct mistakes made by the fiduciary, such as those
made by . . . Goldstein on the CT-706 . . . simply by arguing [that] he
was acting in good faith, even though he was objectively mistaken.’’ Noting
that the trial court found as a factual matter that ‘‘the inclusion of the
Citizens [Bank] account and the failure to account for the mortgage[s] in
the value of the estate were erroneous actions,’’ she emphasizes that, ‘‘[b]y
their very nature, mistakes are often actions that are taken in good faith
but are nonetheless wrong. There is still a strong public interest in favor
of correcting those mistakes to, for example, ensure that an estate tax return
is accurate. This interest remains the same even if the trustee or executor
was acting in good faith at all relevant times.’’ (Emphasis in original.)
10
Contemporary authorities continue to echo these considerations sup-
porting the use of in terrorem clauses. See, e.g., Russell v. Wachovia Bank,
N.A., 370 S.C. 5, 12, 633 S.E.2d 722 (2006) (The court observed that no-contest
‘‘clauses may protect estates from costly and time-consuming litigation and
minimize the bickering over the competence and capacity of testators, and
the various amounts bequeathed. . . . No-contest clauses may have the
desirable effect of ensuring that the details of a testator’s private life are
not made public.’’ (Citation omitted; internal quotation marks omitted.)).
11
The court described the first exception as ‘‘not an exception,’’ observing
that, ‘‘[i]f the action of a [beneficiary] is merely one to determine the true
construction of the will, or of any of its parts, the action could not be held
to breach the ordinary forfeiture clause, for the object of the action is not
to make void the will, or any of its parts, but to ascertain its true legal
meaning.’’ South Norwalk Trust Co. v. St. John, supra, 92 Conn. 176. The
court deemed this doctrine inapplicable because the probate appeal ‘‘did
not . . . raise the question of the construction of [the] will.’’ Id.
12
Like the Appellate Court, our conclusion as to the public policy excep-
tion means that we do not need to consider the third certified question,
which asks us to consider the application of the good faith, probable cause
exception discussed in South Norwalk Trust Co. v. St. John, supra, 92
Conn. 176–77, as an independent basis for relieving the defendant from the
application of the in terrorem clauses. The plaintiff’s argument that South
Norwalk Trust Co. is nonbinding dictum leads us to the work of commenta-
tors who have suggested that the time is apt for refinement of the law
governing such in terrorem clauses, particularly given their relative lack of
effectiveness and the increasing transmission of wealth from members of
the baby boomer generation to their descendants in coming years, including
via the use of nonprobate assets and instruments. See, e.g., M. Begleiter,
supra, 26 Ariz. St. L.J. 678–79; G. Beyer et al., ‘‘The Fine Art of Intimidating
Disgruntled Beneficiaries with In Terrorem Clauses,’’ 51 SMU L. Rev. 225,
268–69, 274 (1998); R. Domsky, ‘‘In Terrorem Clauses: More Bark Than
Bite?,’’ 25 Loy. U. Chi. L.J. 493, 505 (1994); E. Shaheen, Note, ‘‘In Terrorem
Clauses: Broad, Narrow, or Both?,’’ 95 Notre Dame L. Rev. 1763, 1782–83
(2020).
Thus, the continuing vitality of that exception, which is now a nationwide
majority position modeled on South Norwalk Trust Co.; see, e.g., Parker v.
Benoist, 160 So. 3d 198, 204–206 and n.7 (Miss. 2015); Russell v. Wachovia
Bank, N.A., 370 S.C. 5, 12, 633 S.E.2d 722 (2006); presents an issue ‘‘of public
policy, and, [i]n areas [in which] the legislature has spoken . . . the primary
responsibility for formulating public policy must remain with the legislature.’’
(Internal quotation marks omitted.) Jobe v. Commissioner of Correction,
334 Conn. 636, 659, 224 A.3d 147 (2020); see also Butler v. Stegmaier, 77
Va. App. 115, 134–35, 884 S.E.2d 806 (2023) (declining to adopt good faith
and probable cause exception to enforcement of no-contest clauses as matter
of public policy because ‘‘it is the role of the [Virginia] General Assembly
to evaluate and adopt or discard particular public policy changes as the
elected representatives of Virginians directly accountable to the citizenry’’);
EGW v. First Federal Savings Bank of Sheridan, 413 P.3d 106, 111–12 (Wyo.
2018) (noting that Wyoming legislature had ‘‘chosen not to incorporate § 3-
905 of the Uniform Probate Code,’’ which provides for good faith and proba-
ble cause exception, into recently enacted probate code, in declining to
apply such exception as matter of common law); K. Blanco & R. Whitacre,
‘‘The Carrot and Stick Approach: In Terrorem Clauses in Texas Jurispru-
dence,’’ 43 Tex. Tech L. Rev. 1127, 1137–38 (2011) (discussing ‘‘[the] delicate
balance of competing interests and values’’ that attends formulation and
enforcement of rule concerning validity of no contest clauses). We therefore
leave to another day—and more aptly to the legislature—the continuing
vitality of the good faith and probable cause exception.