Engelhardt, supra note 10, at 560-61 (describing how the few decided cases to discuss forfeiture clauses in trusts "support the proposition that courts will construe an in terrorem clause the same in a will as in a trust" and that "[c]ommentators have reached the same conclusion"); Joyce Moore, Will Contests from Start to Finish, 44 St.
supra note 5, at 228-29 ("Where a will pours over into an established trust, at least one court has refused to apply the in terrorem clause in the will to a contest directed at the trust.
The Fine Art of Intimidating Disgruntled Beneficiaries with In Terrorem Clauses, 51 SMU L.
2007) ("We need not determine whether in terrorem clauses are unenforceable in Alabama when their enforceability is specifically challenged, because we conclude that the will contest did not fall within the proscriptions of the in terrorem provision in this case.
See Engelhardt, supra note 10, at 542 ("Limited case law and virtually no statutory law addresses the enforcement of in terrorem clauses in trusts.
However, the IRS further contended that a beneficiary would be extremely reluctant to go to court because, under the in terrorem clause
in Article XXVI, the beneficiary would forfeit all of his or her rights under the trust by going to court.
The definition also might not cover other attempts to discourage judicial review that would be less baldly self-serving but no less reckless: consider, for example, the possibility that an in terrorem clause might be inserted in a budget or appropriations bill (or, still more recklessly, a bill in the U.
On the surface, in terrorem clauses seem especially troubling, because they represent an attempt by the legislature to prevent the judiciary from exercising a power that rightly belongs to it (whereas poison-pill clauses invite the judiciary to exercise that power).
But for in terrorem clauses to be unconstitutional and poison-pill clauses constitutional is an impossible result.