In certain situations, conduct that can support the invalidity of a will can also be the basis for a cause of action for tortious interference with an expectancy of inheritance under Illinois law.
To bring a successful claim for tortious interference with an expectancy of inheritance under Illinois law, the plaintiff must prove:
- The existence of an expectancy;
- That defendant interfered with his expectancy;
- That the interference involved conduct that is tortious in itself, such as fraud, duress, or undue influence;
- That there is a reasonable certainty that the expectancy would have been realized but for defendant’s interference; and damages.
What Is the Existence Of an Expectancy Of Inheritance Under Illinois Law?
The plaintiff must prove that he had an expectancy that he would receive an inheritance from the decedent upon the decedent’s death.
A plaintiff’s expectancy of inheritance would include any devise or bequest that would otherwise have been made under a testamentary instrument or any property that would have passed to plaintiff by intestate succession. See Nemeth v. Banhalmi, 99 Ill.App.3d 493 (1st Dist.1981).
In addition to tortious interference with a testamentary instrument, a cause of action might also arise when someone interferes with gifts that would otherwise have been made to the plaintiff, or when a bad actor induces the decedent to transfer property to the defendant that otherwise would have been inherited by the plaintiff.
When Is a Tortious Interference With an Expectancy Action in Illinois Available?
Generally speaking, if relief is possible in a tortious interference with an expectancy action that is not available in a will contest, the tort is available, but in limited circumstances.
For example, if the tortious interference has made it impossible to probate a prior will, an action for tortious interference with an expectancy of inheritance is generally permitted to proceed in Illinois.
An action for tortious interference with an expectancy is also available under Illinois law if the tortious behavior induced transfers that depleted the probate estate, so that a will contest would not bring adequate relief.
Illinois law does not require a plaintiff to probate an earlier will upon which a claim for tortious interference with expectancy is based.
When Is a Tortious Interference With an Expectancy Action In Illinois Unavailable?
Whether or not a plaintiff can bring a tortious interference with an expectancy of inheritance action often hinges on the availability of a will contest remedy.
If the tortious interference with an expectancy action is premised upon the invalidity of a will, the plaintiff is required to contest the will within the six month deadline under the Illinois Probate Code. If the will contest is not filed, then a tortious interference with an expectancy action will be considered to be an impermissible collateral attack on the probate proceedings. See Robinson v. First State Bank of Monticello, 97 Ill.2d 174, 454 N.E.2d 288, 73 Ill.Dec. 428 (1983).
A tortious interference with an expectancy action is also not permissible if the actual damages recoverable in the action are the same as under a will contest. See In re Estate of Hoover, 160 Ill.App.3d 964, 513 N.E.2d 991, 992; 112 Ill.Dec. 382, 383 (1st Dist.1987).
Actions for tortious interference with an expectancy of inheritance are not as common in Illinois as will contests, simply because they are not as frequently available. In the majority of cases, issues concerning interference with a decedent’s testamentary wishes are handled in a will or trust contest. However, much of the same behavior that supports a will contest will also support a tortious interference with an expectancy action.
An Illinois probate lawyer will be able to review the specific facts of your situation to determine whether an action for tortious interference with an expectancy of inheritance is available under Illinois law, or if your remedy must be pursued in the probate proceedings.