The TCPA and “in terrorem” clauses

A declaratory-judgment claim in a will contest led to a counterclaim based on the will’s in terrorem clause. That counterclaim was met by a TCPA motion to dismiss, which was denied by operation of law. The Fifth Court reversed in Roach v. Roach, No. 05-22-00194-CV (Sept. 18, 2023) (mem. op.).

Specifically, the Court concluded that the TCPA applied, as the “counterclaim was based on or in response to” a pleading. Then, noting a handful of Texas cases involving comparable will cases, the Court held that “appellees failed to meet their burden to establish by clear and specific evidence a prima facie case that John’s declaratory action violated the will’s in terrorem clause.”