Mississippi’s Good-Faith Exception to In Terrorem Clauses
In terrorem, latin for “in fear,” is an aptly named clause found in some wills that deprives an unsuccessful contestant of their bequest under a challenged will. As any Wills & Trusts student could note, will contests can get messy and often cause family drama. If a beneficiary under a will has a substantial bequest, they might not be willing to potentially lose that bequest due to a failed contest. Thus, the in terrorem clause serves as a deterrent to will challenges. However, even in the presence of these clauses, there are still those who challenge a will to get a bigger piece of the pie.
In 1998, Billy Dean Benoist (BD) executed a mutual reciprocal will with his wife that provided, in the event of either spouse’s death, for the creation of a credit shelter for the surviving spouse’s benefit. BD’s wife passed shortly thereafter and the trust was formed with BD as the beneficiary and his children, Bronwyn and William, as cotrustees. Upon the death of BD, the children were to inherit equal shares of the trust and BD’s estate. In 2009, BD was diagnosed with dementia, but William testified that he would often have periods of lucidity. Bronwyn became concerned with her father’s condition and the significant withdrawals that were made from BD’s trust account that were sent directly to William. In 2010, BD executed a new will and died later that year. William submitted the 2010 will for probate and Bronwyn, unaware of the new will, entered the 1998 will for probate. Bronwyn also filed a complaint requesting that the court remove William as a cotrustee of the trust and “order him to make a full and accurate accounting of the trust, void any benefits William had received due to his undue influence upon B.D., and grant any legal equitable relief” to her. At trial, Bronwyn argued that William exerted undue influence over BD by convincing him to give thousands of dollars and real estate to him, which drastically reduced her father’s estate and affected her inheritance. Bronwyn further alleged that William was behind the drafting and execution of the 2010 will. While the jury found that a confidential relationship existed between William and BD, they further found that he had not exerted undue influence over him, thus the lower court found that the 2010 will was valid and enforceable. Furthermore, the will contained a forfeiture provision which stated that any beneficiary of the will who instigated a will contest would have his or her benefits under the will revoked, which the chancellor enforced and held that Bronwyn was no longer a beneficiary under the will. Parker v. Benoist, 160 So. 3d 198 (Miss. 2015).
The main issue on appeal was whether the court should recognize a good faith and probable cause exception to forfeiture provisions in wills. The court reasoned that a forfeiture clause “that operates regardless of a party’s good faith in bringing suit to ascertain the validity of a will frustrates the fundamental purpose of a court, which is to determine whether a will is valid or not.” The court noted that the most compelling reason for a good-faith exception is a citizen’s right to access the courts of the State. Further reasoning that to “allow the enforcement of a forfeiture clause, regardless of a good faith challenge based upon probable cause, would be unconstitutional and against public policy.” Thus, the Mississippi Supreme Court adopted a good-faith and probable cause exception to forfeiture clauses in wills. Parker at 205.
However, the court still had the challenge of determining if Bronwyn acted in good faith. In conducting its analysis, the court noted that William and Bronwyn’s mother “explicitly stated that her children were to inherit equally the remainder of her trust upon the death of B.D.” Until 2010, Bronwyn was under the impression that the estate was to be divided per the 1998 will and large withdrawals were made from BD’s trust account that were sent directly to William. The court noted that these transfers, along with real estate conveyed to William, “severely depleted BD’s estate,” and in effect would have given Bronwyn a much smaller share. The court reasoned that due to these facts, “Bronwyn had a reasonable expectation that her will contest would be successful and has provided significant evidence that she instated the contest in good faith,” and no evidence was introduced that showed bad faith on Bronwyn’s part. Since Bronwyn was found to have acted in good faith, she was allowed to take under the 2010 will. Parker at 208-209.
While I’m sure she would have rather prevailed on her undue influence claim, at least she was able to collect some amount. Having been diagnosed with dementia, who is to say whether BD was really of sound mind when he enacted the new will. However, maybe his intent really was to persuade Bronwyn from bringing suit so as to deter conflict between his surviving children. If this were truly the case, wouldn’t BD have told Bronwyn about the new will prior to his passing? I imagine it was a gut punch to find out there was a new will after having already submitted the old will for probate. Regardless, the case did bring about a good-faith exception to the in terrorem clause in Mississippi. This is undoubtedly a good thing. People should not be bullied into submission by these clauses, especially if they were brought about by undue influence. This exception will give potentially wronged beneficiaries of a will a chance to fight for what may have been the true intent of a testator.
