Legal Memorandum: Doctrine of Judicial Estoppel in WI

Issue: Under Wisconsin law, is a party precluded from asserting inconsistent positions in litigation under the doctrine of judicial estoppel?

The determination of whether an in terrorem clause has been triggered involves both a construction of the will and an examination of the conduct of the person alleged to have triggered the clause.  In re Walsh, 40 Misc. 3d 1206(A), 975 N.Y.S.2d 370, 2013 N.Y. Slip Op. 51060(U) (citing In re Ellis, 252 A.D.2d 118, 128, 683 N.Y.S.2d 113 (2d Dep’t 1998)). 

Generally speaking, if a no-contest clause prohibits only certain specific acts, other acts by a beneficiary will not trigger operation of the clause.  In In re Stralem, for instance, the court held that an in terrorem clause prohibiting the beneficiaries from objecting to probate or moving to set aside the trusts was not triggered by a proceeding to revoke letters of trusteeship.  181 Misc. 2d 715, 721, 695 N.Y.S.2d 274, 279 (Sur. Ct., Nassau County 1999).  When an in terrorem clause is worded broadly, however, the beneficiary must be more cautious.  See N.Y. Est. Powers & Trusts Law § 3-3-5(b), 2013 Practice Commentaries.  In Ellis, 252 A.D.2d 118, 683 N.Y.S.2d 113, for example, the will revoked the decedent’s sons’ bequests if the sons contested the will “in any manner, directly or indirectly” (similarly to the language used in the trust in this case).  Id. at 121-22, 683 N.Y.S.2d at 115-16.  The Ellis court held that when one of the sons embarked on a two-year program of discovery and lawsuits to prove that the decedent’s daughter had exercised undue […]