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


In Terrorem Provision


The trial court granted applicants’ request for eight trusts to be consolidated under the court’s deviation authority provided in Property Code § 112.054.  The court explained that “[b]ecause of circumstances not known to or anticipated by the settlors, the original terms of the Eight Trusts would substantially impair the accomplishment of the purposes of the Eight Trusts in ways [the settlors] could not have anticipated.”  Id. at 716.  The consolidation did not impact the dispositive provisions of the trusts.


Appellants assert that the consolidation violated in terrorem will provisions which stated that forfeiture occurs if an action is brought “for the purpose of modifying, varying, setting aside or nullifying any provision thereof * * * on any ground whatsoever.”  Id. at 715.  The appellate court rejected this assertion holding that the suit for judicial modification of administrative terms was not intended to thwart the testators’ intent and thus did not trigger forfeiture.  In fact, the wills did not prohibit consolidation and the consolidation would prevent waste and avoid impairment of the administration of the trust.


Moral:  Courts strictly construe in terrorem provisions and are unlikely to enforce them when property disposition is not impacted by the lawsuit.