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Estate and Elder Law

The Gatekeeper Of Intentional Interference With Expectancy Of Inheritance: An ‘In Adequate Remedy In Probate’


By Shirley L. Kovar |

In this Emerging Issues Analysis, Shirley L. Kovar, a partner in the Estate & Trust Litigation Practice and International Private Client groups at Henderson, Caverly, Pum & Charney, LLP in San Diego, identifies some of the ways IIEI differs from traditional inheritance law, highlighting Beckwith v. Dahl [enhanced opinion available to subscribers | Lexis Advance] as an example of circumstances in which the court found the plaintiff had an inadequate remedy in probate and provides illustrations of the issues that arise when courts use "an inadequate remedy in probate" as the test for IIEI.

She writes: “In 2012 in Beckwith v. Dahl, California became the 26th state to recognize Intentional Interference with the Expectancy of Inheritance (IIEI) as a cause of action. Such recognition is a marker of sorts. IIEI is not an outlier; it is in the mainstream of ways trust and estate lawyers may resolve an inheritance dispute.

“IIEI has been recognized at the national level since 1979, when the Restatement (Second) of Torts described IIEI as follows:

"’One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.’

“Although a majority of states now recognize IIEI, most courts that do recognize IIEI identify two concerns in doing so. One concern is that IIEI could create a separate system in civil divisions from the traditional resolution of inheritance disputes in probate court under state Probate Codes, and such a dual system is unwise. A dual track could be redundant or conflicting, thus destabilizing to the orderly resolution of inheritance disputes provided by the singular system established by state Probate Codes.

“A further concern is that IIEI is not governed by the specialized rules in state Probate Codes. As an example, most states do not permit jury trials for actions pursuant to state Probate Codes. 6 The court in Beckwith noted that ‘we] would risk undermining the legislative intent inherent in creating the Probate Code as the preferable, if not exclusive, remedy for disputes over testamentary documents.’"

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