By Joseph L. Wyatt, Jr., Morrison
& Foerster LLP
Brent and Marc were
committed partners for almost ten years; Marc's will on his computer (never
executed) divided his estate equally between Brent and Marc's estranged sister
Susan. When Marc's health worsened, and
he asked Brent to print the will so he could sign it and Brent couldn't find
it, Brent created a new one with the same split.
When Brent showed the will
to Susan she suggested instead a living trust to avoid probate and said she
would get her attorney friends to help, meanwhile telling Brent not to present
the will to Marc since her friends would prepare the trust. (Susan never gave Marc any trust documents to
Marc went into surgery on
his lungs; doctors told Susan Marc might not survive (but didn't tell Brent
since he wasn't a family member). Marc got
worse. Six days later on doctors'
recommendations Susan removed Marc from the ventilator and he died intestate.
Susan opened a probate,
told Brent but sent him no copies of papers.
When Brent began asking Susan about probate details, she said she didn't
know anything, so Brent looked up the case himself, got no response from Susan
until finally she said that because Marc died without a will and the estate
went into probate, she was made "executor" of his estate, the court declared
that his assets would go to his only surviving family member "which is
me." Susan then petitioned for final
distribution, Brent opposed, appearing pro
se; the probate judge found he had no
standing because he was not a creditor and had no intestate rights.
Brent sued Susan, alleging
intentional interference with expected inheritance ("IIEI"), deceit by false
promise, and negligence. Susan demurred
to all three causes of action. The trial
court sustained the demurrer as to all three causes - as to the IIEI claim because
the trial court was not "in a position to recognize" a new tort.
On appeal [Beckwith v. Dahl, 205 Cal. App. 4th 1039
(Cal. App. 4th Dist. 2012) [enhanced version available to lexis.com subscribers]],
the appellate court decided "it is time to officially recognize this tort
The opinion first quoted
Prosser & Keeton, that "When it becomes clear that the plaintiff's
interests are entitled to legal protection against the conduct of the
defendant, the mere fact that the claim is novel will not of itself operate as
a bar to a remedy" and then recognized that 25 of the 42 states that have
considered the tort have validated it as did the Restatement (Second) of Torts
The opinion described how prior
California intermediate appellate decisions had referred to the tort but
skirted its recognition, then thoughtfully considered and answered policy
considerations against recognizing the tort and finally remanded the matter
with leave to amend the IIEI cause of action if Brent is able to plead it
successfully. Said the court of appeal,
"In general, most
states recognizing the tort adopt it with the following elements: (1) an
expectation of receiving an inheritance; (2) intentional interference with that
expectancy by a third party; (3) the interference was independently wrongful or
tortious; (4) there was a reasonable certainty that, but for the interference,
the plaintiff would have received the inheritance; and (5) damages. (See, e.g.,
Fell v. Rambo (Tenn.Ct.App. 2000) 36 S.W.3d 837, 849 [enhanced version available to lexis.com subscribers].)
Most states prohibit an interference action when the plaintiff already has an
adequate probate remedy. (See, e.g., Minton v. Sackett (Ind.Ct.App.
1996) 671 N.E.2d 160, 162-163 (Minton) [enhanced version available to lexis.com subscribers].)"
Why only "Sorta"
recognizing the IIEI tort? Because the
existence here of a separate action for promissory fraud may raise a question
whether recognition of IIEI is not "necessary to afford an injured plaintiff a
remedy" because he has another adequate remedy.
Morrison & Foerster's Trusts and Estates group
provides sophisticated planning and administration services to a broad variety
of clients. If you would like additional
information or assistance, please contact Patrick McCabe at (415) 268-6926 or
© Copyright 2012 Morrison & Foerster LLP. This article is published with permission of
Morrison & Foerster LLP. Further
duplication without the permission of Morrison & Foerster LLP is
prohibited. All rights reserved. The views expressed in this article are those
of the authors only, are intended to be general in nature, and are not
attributable to Morrison & Foerster LLP or any of its clients. The information provided herein may not be
applicable in all situations and should not be acted upon without specific
legal advice based on particular situations.
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