Tortious interference in estate planning, also known as tortuous interference with inheritance, also known as tortuous interference with expectancy, is a relatively new theory of inheritance liability first recognized in Florida in 1966. See Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966).
What Is Tortious Interference With The Expectancy of An Inheritance?
To state a claim for intentional interference with an expectancy of inheritance, the complaint must allege:
- the existence of an expectancy;
- intentional interference with the expectancy through tortuous conduct;
- causation; and,
The tort is primarily to protect the deceased testator’s former right to dispose of property freely and without improper interference.
If adequate relief is available in a probate proceeding, then that probate remedy must be exhausted before such a claim can be pursued. If Defendant’s fraud is not discovered until after probate, plaintiff is allowed to bring a later action for damages since relief in the probate court was impossible. Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007).
The tortious interference action may be brought only under circumstances that do not usurp the jurisdiction of the Florida probate court, constitute an impermissible collateral attack on an order or judgment entered in a Florida probate proceeding, or improperly delegate, to disappointed beneficiaries, the responsibility for the protection of a competent testator’s right to dispose of property freely and without improper interference.
You Must Exhaust Your Available Probate Remedies Before Bringing The Tortious Interference Action
Florida law requires the exhaustion of other available probate remedies that may provide adequate relief.
In DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981), the Florida Supreme Court set forth the rule of tortious interference, stating that:
if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortuous interference claim may be pursued.
A later action (after a probate action) for tortious interference is allowed only if the circumstances surrounding the tortious conduct effectively preclude full and adequate relief in the probate court and the inadequacy of the probate remedy is made apparent or established. Id. One such situation when a later action is permitted is when the defendant’s conduct precludes the plaintiff from obtaining adequate relief in the probate proceeding. Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4thDCA 1984).
In Ebeling, plaintiffs had notice of the will favoring defendant, but failed to litigate an incapacity claim in the probate proceeding because of defendant’s fraudulent inducement not to contest the will. The subsequent tortious interference with expectancy action was allowed and determined not to be an impermissible collateral attack on the will or the probate proceedings.
The Schilling case distinguishes DeWitt by the allegations of two separate frauds – the initial fraud on the testator, and the second by the prevention of a contest in the probate court. The court noted that if only the first fraud was involved, that the attack on the will would be a collateral attack on the probate proceedings barred pursuant to DeWitt.
Tortious Interference With Expectancy of Inheritance Cases
The holdings of Florida’s most recent tortious interference with expectancy of inheritance cases are summarized below:
- In Re Estate of Tensfeldt (2d DCA 2003): No cause of action for tortious interference with expectancy of inheritance accrues until the testator’s death.
- Cohen v. Cohen (4th DCA 2003): No cause of action for tortious interference with expectancy of inheritance because plaintiff failed to exhaust her probate remedy by seeking to invalidate a 2000 Will and seeking probate of a 1997 will.
- Neumann v. Wordock (2d DCA 2004): An adequate remedy is only available in a probate proceeding if the distribution of assets sought by the aggrieved party can be achieved in the probate proceeding.
- In Re Estate of Hatten (3d DCA 2004): If a beneficiary of a maliciously destroyed will cannot establish the will because of the evidentiary requirements for establishing a lost will, and if their share in the probate is less than what they would have received under the destroyed will, then they do not have an adequate probate remedy and can pursue a tortious interference with expectancy of inheritance action.
- Saewitz v. Saewitz (3d DCA 2012): To state a claim for tortious interference with expectancy of inheritance you need damages, which is the loss of an inheritance or gift that would have been received but for the tortious inteference. The damage must be established with a reasonable degree of certainty, meaning that which would satisfy the mind of a prudent impartial person.