A Strong Offense
A Stronger Defense
Forfeitures are disfavored in law. So it may come as little surprise that, in Parker v. Benoist, the Supreme Court of Mississippi determined that Mississippi law should recognize a good faith and probable cause exception to a forfeiture in terrorem clause in a will. The in terrorem clause in the will at issue in this case contained an increasingly common provision that purported to bar even good faith challenges to the will based on probable cause:
If any beneficiary hereunder (including, but not limited to, any beneficiary of a trust created herein) shall contest the probate or validity of this Will or any provision thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this Will or to prevent any provision thereof from being carried out in accordance with its terms (regardless of whether or not such proceedings are instituted in good faith and with probable cause), then all benefits provided for such beneficiary are revoked and such benefits shall pass to the residuary beneficiaries of this Will. . . .
The Supreme Court of Mississippi determined, in what was a case of first impression under Mississippi law, that such a good faith and probable cause limitation is unenforceable. According to the Court, a testator cannot punish from the grave someone who sets about bringing to a court good faith and probable cause based questions about a will’s validity. The Court reasoned that courts exist to ascertain the truth, and scaring someone into silence upon penalty of forfeiture, frustrates the purposes of our courts and unconstitutionally frustrates the right of a citizen to access the courts.