Conte v. Conte

In Conte v. Conte, 56 S.W.3d 830 (Tex. App.--Houston 1st Dist. 2001, no pet.), the in terrorem clause prohibited any beneficiary or remainderman from contesting or challenging "this trust or any of its provisions," "in any manner, directly, or indirectly." The trust further provided that the grantor's surviving spouse and children would serve as co-trustees. Id. Soon thereafter, one co-trustee sued to remove another co-trustee. Id. The court held that the in terrorem clause was not violated by the suit because the trust did not have any provisions regarding the removal of trustees. Id. at 832. However, the court went further and, citing McClendon and Newbill, stated as follows: "An action to remove a trustee, like an action to remove an executor, is not an effort to vary the grantor's intent. Appellant's interpretation of the in terrorem clause would deprive appellee of her statutory rights under the trust provisions of the Texas Property Code, as the proposed construction of the in terrorem clause in Newbill would have deprived the beneficiaries of the statutory right to ensure that the executor was qualified." Id. at 833 .