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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 beneficiary 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 apparently 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 improperly 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 conducted 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 challenge 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 Appellate Court, Bright, C. J., and Elgo and DiPentima, Js.,

which affirmed the trial court’s judgment, and the plaintiff, 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. Kaelin, 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 enforcement 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 judgment of the Appellate Court.

The opinion of the Appellate Court aptly sets forth the

relevant facts, as found by the trial court, and procedural 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 agreement), 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 defendant 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 creditor’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 predeceased [the] [s]ettlor without surviving issue. . . .’ The

in terrorem clause in the will likewise provides in relevant 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 creditor’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 executor. While administering the estate . . . Goldstein

sent letters to the beneficiaries, including the defendant,

which detailed their required contributions for the payment 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 Probate 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 agreement. Specifically, the plaintiff argued that the defendant 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. Enforcement 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 Superior Court seeking to invalidate . . . Goldstein’s

December, 2012 transfer by quitclaim deed of the

estate’s interest in Buffalo Bay to the defendant pursuant 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 invalidate 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.’’ (Footnotes 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 counterclaim in that appeal, alleging that the plaintiff had

violated the in terrorem clauses by instituting the

December 17, 2015 action to invalidate . . . Goldstein’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 violated 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 administering the estate and the trust, thus excusing any violations 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 technically 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 interests with no corresponding benefit, it violates public

policy.’’ Salce v. Cardello, supra, 210 Conn. App. 80–81;

see id., 80 (noting ‘‘significant’’ and ‘‘important’’ interests 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 Appellate 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 concluded 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 ascertain and effectuate settlor’s intent as expressed in language 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 certified 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 Appellate 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 Appellate 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 application 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 entertaining 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 undertake 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 Dictionary (11th Ed. 2019) p. 1258; accord McGrath v. Gallant, 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 terrorem provisions ‘‘must be strictly construed against

forfeiture, enforced as written, and interpreted reasonably 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 punitive 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 considered 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 suppressed 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 testamentary 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 challenger, ‘‘[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 forfeiture 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 (emphasizing 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 consistent with Griffin’s protection of statutory remedies as

a matter of public policy, particularly insofar as in terrorem clauses directed at challenges to fiduciary conduct implicate public policy concerns different from

those directed at document formation; this is particularly 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 accounting 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 interfere 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 decision in Sinclair v. Sinclair, supra, 284 Ga. 500. In Sinclair, 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 omitted.) 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 personal 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 quotation 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 unambiguously 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 terrorized into relinquishing his legacy by any threat of forfeiture. 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 diminishes 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 beneficiaries violate the public policy behind court supervision.’’); 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 nocontest clause for public policy reasons), cert. denied,

Oklahoma Supreme Court, Docket No. SD-103371 (February 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 statutorily 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 interfere with the Probate Court’s exercise of its statutorily

mandated supervisory responsibilities over the administration of an estate and its superintendence of the fiduciary’s statutory obligations. As the defendant argues,

the in terrorem clauses in this case implicate the Probate 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 footnotes 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 testator’s or settlor’s documents.’’ See, e.g., Derblom v. Archdiocese 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 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 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 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 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 frivolously balances effectuating the settlor’s intent to minimize litigation with enabling beneficiaries to aid the

Probate Court in the exercise of its statutory responsibilities to protect the estate. See In re Estate of Ferber,

supra, 66 Cal. App. 4th 254 (adopting ‘‘a balancing process’’ to protect salutary features of no-contest clause,

including discouraging litigation and protecting the testator’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 without fear of being disinherited, furthering the public policy 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 beneficiaries 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 fiduciary’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 exception will not, as a matter of public policy, shield the

challenging beneficiary from the operation of an applicable 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 conclusion 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 ALEXANDER, 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 decedent’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 enforcement 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 discretionary 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, generationskipping, 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 challenge is ineffectual in this respect because it ‘‘would still prohibit a beneficiary 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 supporting 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 exception 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 commentators 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 probable 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 Jurisprudence,’’ 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.