Salce v. Cardello, 348 Conn. 90

Background

This opinion is Justice D’Auria’s dissent in a certified appeal (Salce v. Cardello) concerning the enforceability of in terrorem (no-contest) clauses in a will and trust that penalize beneficiaries who object to fiduciary actions.
The operative dispute arose when a sole significant beneficiary challenged the executor’s filing of an allegedly inaccurate tax return; the trust/will contained broad in terrorem clauses that would forfeit a beneficiary’s share for objecting to fiduciary acts unless the fiduciary acted in bad faith.
The majority held that in terrorem clauses are unenforceable when their application would interfere with the Probate Court’s statutorily mandated supervisory responsibilities over fiduciaries (invoking probate statutes such as General Statutes §§ 45a-175, 45a-233(d), 45a-242(a)).
Justice D’Auria’s dissent argues that invalidating longstanding in terrorem provisions requires a clearly articulated, strong, dominant public policy to overcome the testator’s traditional right to condition testamentary gifts.
D’Auria emphasizes (1) historical precedent upholding testator control over dispositions, (2) existing probate statutory mechanisms to supervise fiduciaries, (3) legislative silence on adopting the Uniform Probate Code’s probable-cause exception, and (4) the specific clauses’ good-faith carve-out that, in his view, preserves the Probate Court’s oversight.

Issues

Issue	Salce's Argument	Cardello's Argument	Held
Whether in terrorem clauses that bar beneficiaries from challenging fiduciary acts violate public policy when they impede Probate Court supervision	In terrorem clauses are unenforceable when their application would interfere with statutory probate supervision; beneficiaries must be able to bring good‑faith challenges	Testator intent to impose conditions should be respected; clauses are permissible and sometimes contain good‑faith carve-outs	Majority: such clauses violate public policy when they would interfere with Probate Court’s supervisory role (invalidated in this context)
Whether the probate statutes cited manifest a dominant public policy sufficient to override testamentary conditions	Probate statutes (e.g., accounting, removal powers) reflect an important public interest in supervisory oversight that outweighs the no‑contest protection	These statutes reflect administrative supervision but do not constitute the strong, clearly articulated public policy needed to abrogate testator intent; judicial change should await legislative action	Majority: statutes support invalidation in terrorem clauses that obstruct oversight; Dissent: statutes do not show dominant public policy and judiciary should defer to legislature
Whether the specific language of the challenged clauses (which exempt fiduciary acts taken in good faith) preserves legitimate testator purpose and should be enforced	Clauses nevertheless can deter necessary good‑faith challenges and thus impede probate oversight	Clauses expressly permit challenges when fiduciary acts are not in good faith; they balance testator intent and court supervision and should be enforced	Dissent: clauses’ good‑faith language means they need not be read to bar merit-based challenges; Majority: nonetheless invalidated because application could block supervision

Key Cases Cited

Salce v. Cardello, 210 Conn. App. 66 (Conn. App. 2022) (Appellate Court decision addressing the contested in terrorem clauses)
DeLadson v. Crawford, 93 Conn. 402 (Conn. 1919) (longstanding rule that a testator may impose conditions on vesting/enjoyment of estate)
South Norwalk Trust Co. v. St. John, 92 Conn. 168 (Conn. 1917) (upholding forfeiture clauses to deter will contests)
Peiter v. Degenring, 136 Conn. 331 (Conn. 1949) (testator’s right to attach lawful conditions to testamentary gifts)
Schwerin v. Ratcliffe, 335 Conn. 300 (Conn. 2020) (cardinal rule: effectuate testator intent unless contrary to positive law)
HH East Parcel, LLC v. Handy & Harman, Inc., 287 Conn. 189 (Conn. 2008) (public-policy exception to arbitration awards is narrow; requires well-defined, dominant policy)
State v. New England Health Care Employees Union, Dist. 1199, AFL-CIO, 271 Conn. 127 (Conn. 2004) (public policy exception confined to explicit, well-defined policies)
New Haven v. AFSCME, Council 4, Local 3144, 338 Conn. 154 (Conn. 2021) (general notions of public good insufficient to invoke narrow public‑policy exception)
EGW v. First Federal Sav. Bank of Sheridan, 413 P.3d 106 (Wyo. 2018) (Wyoming upheld enforceability of no‑contest clauses and emphasized testator’s disposition rights)
Dainton v. Watson, 658 P.2d 79 (Wyo. 1983) (refused good‑faith/probable‑cause exception to no‑contest clauses; upheld testator’s intent)