§ 373 TORTIOUS INTERFERENCE WITH AN INHERITANCE

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 373 Tortious interference with an inheritance

The tort of intentional interference with an expected inheritance or gift is recognized by the Restatement (Second) of Torts § 774B (1979). Some reasons offered for the necessity of recognizing this intentional tort include (1) the typically short statute of limitations period for will contests and the typically longer torts statute of limitations, which importantly does not start until the plaintiff could reasonably become aware of a claim; (2) punitive damages are available for an intentional tort but not in a will contest; and (3) evidentiary issues—for example, the testimony of an interested witness—might be barred in probate.⁵¹⁹ Jurisdictions have recognized tortious interference with inheritance or gift because there is a need not met by probate. Courts in about half of the states have recognized tortious interference with inheritance, and so has the United States Supreme Court in Marshall v. Marshall.⁵²⁰

§ 373.1 South Carolina law

Although at the time of publication no South Carolina appellate court has formally adopted tortious interference with an inheritance, South Carolina law indicates support for adopting tortious interference with inheritance and gifts. In Douglass v. Boyce,⁵²¹ the South Carolina Supreme Court ruled in favor of the attorneys who were being sued for malpractice because those attorneys represented a personal representative and thus owed no duty to an alleged child beneficiary. One of the claims raised was tortious interference with an inheritance. Having already disposed of the claim against the attorneys because of the attorneys' professional immunity from liability to the child, the Court stated that it did not need to decide whether to recognize tortious interference with an inheritance. The Court deferred that determination to another day.

However, the Douglass court essentially invited an aggrieved plaintiff to sue for tortious interference with an inheritance. The Court observed that South Carolina recognized tortious interference with prospective contractual relations and that tortious interference with an inheritance was based on closely analogous elements:

We have adopted the closely analogous tort of intentional interference with prospective contractual relations. Crandall Corp. v. Navistar Int'l Transp. Corp., 302 S.C. 265, 395 S.E.2d 179 (1990); see also Allen v. Hall, 328 Or. 276, 974 P.2d 199 (1999) (intentional interference with inheritance closely analogous to intentional interference with economic relations). Most jurisdictions adopting the tort of intentional interference with inheritance have required the plaintiff to prove the following elements: (1) the existence of an expectancy (2) an intentional interference with that expectancy through tortious conduct (3) a reasonable certainty that the expectancy would have been realized but for the interference and (4) damages.⁵²²

It would not be far-fetched to presume that the Douglass Court, observing that it did not need to decide in that case whether to adopt tortious interference with an inheritance, nevertheless presaged the eventual adoption of the tort rather than going to the otherwise unnecessary exercise of explaining that South Carolina recognized an intentional tort—intentional interference with prospective contractual relations—having the same elements as tortious interference with an inheritance. There is no South Carolina case rejecting the adoption of tortious interference with inheritance.

In Malloy v. Thompson,⁵²³ a beneficiary of the decedent sued a brokerage firm for intentional interference with an inheritance. The brokerage firm attempted to enforce an arbitration agreement purportedly entered into by the decedent. On appeal, the brokerage firm raised for the first time the argument that South Carolina had not adopted tortious interference with an inheritance. Holding that the arbitration agreement did not bind the beneficiary, the Supreme Court refused to address the brokerage firm's argument about tortious interference because it was not raised in the trial court.

The issue whether South Carolina recognizes intentional interference with inheritance was neither raised nor ruled upon below, nor was there any discussion or ruling as to the sufficiency of Malloy's complaint. "While our rules allow us to affirm the trial court's ruling on any ground appearing in the record, Rule 220 SCACR, Merrill Lynch asks us to reverse on such a ground. We decline to do so, and this opinion must not be understood as either adopting or rejecting the tort of intentional interference with inheritance."⁵²⁴

§ 373.2 Arguments for adopting tortious interference with an inheritance

The primary goal of wills law is to ascertain the expressed intent of the testator. To ensure the best reasonable way of accomplishing that goal, the legislature has enacted requirements for executing a will, as found in section 2-502.⁵²⁵ Those requirements are intended to provide the best evidence of the testator's intent while protecting the testator from undue influence and fraud. The protective function of these legislatively-imposed requirements is of critical importance—that is, protecting the testator from the acts of others that prevent the accomplishment of the testator's intentions. Similarly, tortious interference with an inheritance is a tool that helps the testator accomplish his or her intentions by putting the tortfeasor at risk for liability, a deterrent that will give potential bad actors pause before attempting to thwart the accomplishment of the testator's intentions, thereby enhancing the testator's freedom of testation. Freedom of testation is a meaningless phrase without the accompanying protections for the testator from the bad acts of others.

The deterrent effect of tortious interference is important because there is no deterrent effect in probate. In probate, the tortfeasor risks nothing by committing the act of interfering with the right of disposition—at best, the intended beneficiary will obtain a remedy in probate that will re-direct the intended disposition to the intended beneficiary, but that tortfeasor has no other risk for attempting the bad act. The tort, however, gives the tortfeasor something to lose—personal liability with possible punitive damages—and thus serves as a deterrent.

In addition to the critically important deterrent effect—the protective function—provided by tortious interference with inheritance, there are a number of other examples demonstrating the need for the recognition of that tort.

A classic example involves the testator who intends to make a will devising property to a beneficiary who would not otherwise be an intestate heir. A tortfeasor prevents the testator from ever executing that will, and the testator thus dies intestate. There is no probate remedy. The beneficiary intended by the testator to take under the will takes nothing because there is no will. The intended beneficiary's expectancy, based on the testator's intent, could be realized only by the use of tortious interference with an inheritance.⁵²⁶

Another example of the need for tortious interference involves situations when the intended beneficiary lacks standing in probate court.

Yet another example is the lack of a probate remedy in situations when a tortfeasor deprives the intended beneficiary of a transfer of nonprobate assets. This is the example demonstrated by the United States Supreme Court's Marshall decision.⁵²⁷

Another situation supporting the adoption of tortious interference with inheritance involves the case when a tortfeasor consumes or dissipates or wastes the assets. A constructive trust would require someone who wrongfully holds...