Morrison & Foerster LLP: California Joins 25 Other States In Recognizing the Tort of Intentional Interference With Expected Inheritance – “Sorta”

Morrison & Foerster LLP: California Joins 25 Other States In Recognizing the Tort of Intentional Interference With Expected Inheritance – “Sorta”

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 sign.)

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 subscribers]], the appellate court decided "it is time to officially recognize this tort claim." 

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 § 774B.

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 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 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.  Stay tuned.

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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