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Can You File Tortious Interference With Expectancy After Dismissing Direct Challenge to Trust In Illinois?

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Many states, including Illinois, recognize a fairly new cause of action, called tortious interference with expectancy, also known as tortious interference with an inheritance.  Because the cause of action is relatively new, the governing rules are still being determined by courts.  The rules also vary from state to state.

What is Tortious Interference with Expectancy?

The cause of action of tortious interference with expectancy in Illinois is designed to provide a remedy to a disinherited heir where there is no adequate remedy through a direct assault on the testamentary instrument in question.  For example, in most states, to set aside a will as the result of undue influence, the undue influencer must have received a benefit from the new will.  If an intermeddler is the one who applies the undue influence but does not benefit from the new will, most states will not permit the new will to be set aside as the result of undue influence.  Tortious interference with expectancy allows a disinherited heir in this example to sue the intermeddler for damages – the amount of the lost inheritance.

Common concerns in bringing the tortious interference with expectancy are when to bring the lawsuit, and whether the lawsuit should be filed along with, or separately from, the direct attack on the testamentary instrument.

Can Res Judicata Defeat a Tortious Interference Claim?

Yes, the res judicata doctrine can defeat a tortious interference claim in Illinois if issues in a prior action (the direct assault on the testamentary instrument) are resolved with finality.

In the case of Trackman v. Michela, 2019 IL App (2d) 190131, an Illinois appellate court affirmed the dismissal of a tortious interference with expectancy claim on the grounds of res judicata.

What is Res Judicata?

According to the Illinois court:

Res judicata means that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent action between the parties or their privies on the same cause of action.  Res judicata bars not only what was actually decided in the first action but also whatever could have been decided.  As noted earlier, res judicata requires a final judgment on the merits, an identity of parties, and an identity of causes of action.

The plaintiff in the case filed a three count complaint alleging (i) the defendant tortiously interfered with plaintiff’s expectation of an inheritance, (ii) the defendant asserted undue influence over the decedent, and (iii) the decedent lacked testamentary capacity when she made the trust amendment in question.  Importantly, the third count incorporated by reference the facts alleged in the first two counts.

The third count was dismissed by the trial court, such dismissal being upheld in an earlier appeal.  The plaintiff ultimately dismissed without prejudice the first two counts, just before trial.

Illinois Court Dismisses Tortious Interference Claim on Res Judicata Grounds

The plaintiff then filed a one-count complaint against the defendant in Illinois for tortious interference with expectation of an inheritance.  The appellate court affirmed the dismissal of the complaint on res judicata grounds, reasoning as follows:

Illinois law uses the “transactional test” to determine whether two causes of action are identical for res judicata purposes. The transactional test considers whether the claims arise from a common core of operative facts.This depends in turn on a pragmatic consideration of whether the facts are related in time, space, origin, or motivation and form a convenient trial unit. 

Under this test, count III [in the first complaint] and the single count in [the second complaint] are the same for res judicata purposes. As defendant notes, count III pleaded the same facts (incorporated by reference) as did count I for tortious interference, which was the predecessor to the present complaint. More importantly, though, count III and [the second complaint] are based on the same core of operative facts, even though their theories and factual bases are not identical. Both are based on [the decedent’s] conduct in creating trust documents that excluded plaintiff from any inheritance. Both allege the same harm. That they would have formed a convenient trial unit is self-evident and also shown by plaintiff’s having pleaded both theories in [the first complaint].

Dangers of Claim Splitting and Incorporating By Reference

The Court relied on established Illinois precedent to reason “a plaintiff who splits his claims by voluntarily dismissing and refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense.”  In other words, litigants are risking disaster when they attempt to divide their similar and overlapping claims in multiple lawsuits.

What appeared to be most fatal to the plaintiff was that Count III in the original case, asserting lack of capacity, was ultimately dismissed with prejudice, but Count III incorporated by reference the facts laid out in Counts I and II.  Count I was a tortious interference case.  Therefore, the dismissal with prejudice of Count III worked to dismiss any cause of action based on Count III, as well as any cause of action based on facts incorporated by reference in Count III – which in this case were the tortious interference facts incorporated (most likely unnecessarily) into Count III.

Managing a tortious interference case with claims that are a direct assault on the validity of the testamentary documents is a tricky business.  Also, the rules in each state can vary on the issues decided in the Trackman case.

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