In the matter of Stewart (CA1 9/27/12)

We have here an interlocutory ruling irrelevant, or at least incidental, to the final judgment, but now the subject of an appeal that only the appellant filed a brief in. A perfect opportunity, you’re thinking, for a memorandum opinion: failure to file an answering brief admits error and the court isn’t going to create precedent based on this kind of record. But CA1 specifically refuses to do that (in, you guessed it, a footnote). If that surprises you then you forgot the Cardoso case.

Stewart’s Will disinherited one of his sons, who filed suit to contest it. The Will and associated Trust contained in terrorem clauses. Since  the son wasn’t a beneficiary anyway they didn’t apply to him but they did apply to siblings that he wanted discovery from (the clauses included  those who “cooperate or aid” a contest). So he successfully asked the trial court to rule them void.

Son then settled his claim. At the behest of other siblings, the trial court reiterated in the resulting judgment its ruling on the in terrorem clauses  (a foolish mistake which, by ensuring an appeal, caused this whole problem). The estate appealed that part of the judgment. The son didn’t file a brief.

The opinion first rules, after quick and conclusory analyses, that the son had standing to raise the issue and that it was ripe for adjudication. It apparently sees these as being basically the same issue.

Then it moves to the merits. Those of you who do this law will remember 14-2517: in terrorem clauses are invalid if there is probable cause for the contest. The court holds, in a vague and prolix way, that this applies regardless of competing or conflicting language in the Will (which here said that the in terrorem clauses applied “regardless of whether any such contest is made in good faith or is ultimately successful”). The trial court had ruled that this conflicting language itself voided the clauses, so the court reverses.

But once again (as here) the court makes another, dispositive ruling in a footnote: the statute only applies to Wills, so the trial court was wrong to rule on the Trust clause under 14-2517.

The “cooperate or aid” clause, the court holds, does not violate public policy because the court will interpret it to mean voluntary cooperation or aid – so siblings in the future needn’t worry about violating an in terrorem clause by giving a deposition.

(link to opinion)