Tortious Interference With Inheritance
| Publication year | 2013 |
| Pages | 59 |
By Herb E. Tucker, Gregory B. Washington
Articles Trust and Estate Law
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Coordinating Editors
David W. Kirch, of David W. Kirch, P.C., Aurora —(303) 671-7726, dkirch@dwkpc.net; Constance D. Smith, of Fairfield and Woods P.C.—(303) 894-4474, csmith@fwlaw.com
About the Authors
Herb E. Tucker is a shareholder with the Denver law firm of Wade Ash Woods Hill & Farley, P.C., where he specializes in estate and trust administration with an emphasis in probate and trust litigation. He is a CBA Trust and Estate Section member. He has lectured locally and nationally and has written numerous articles on probate and trust litigation topics. He has been named in Best Lawyers in America® and Colorado Super Lawyers since 2005— htucker@wadeash.com. Gregory B. Washington is an attorney at Wade Ash Woods Hill & Farley, P.C. who specializes in estate and trust litigation and estate administration. He is an experienced litigator, counselor at law, and appellate attorney who is admitted to practice in all Colorado state courts, as well as in the U.S. District Courts for Colorado and the Central District of California and the Tenth Circuit Court of Appeals. He is a member of the CBA Trust and Estate Section and frequently lectures on issues related to his areas of practice—gwashington@wadeash.com.
Where traditional will contest remedies would fail to provide complete relief to litigants, an increasing number of state courts throughout the United have recognized claims for tortious interference with inheritance. Although Colorado state courts, at least at the appellate level, have yet to do so, this article identifies case law from the Tenth Circuit and local federal district courts that suggests that Colorado courts, if faced with the issue, would recognize claims of this nature.
"One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that otherwise have received is subject to liability to other for loss of the inheritance or gift."
—Restatement (Second) of Torts § 774B (1979)
Colorado state courts have long recognized the tort of tortious interference with contractual rights.[1] At least at the appellate level, however, they have yet to embrace claims for tortious interference with inheritance rights, despite the fact that the courts of many other jurisdictions have done so. In 1999, the Tenth Circuit Court of Appeals assumed for purposes of its decision that Colorado state courts would recognize this common law tort.[2] The U.S. District Court for the District of Colorado also has recognized the tort in a diversity case, without citation to any Colorado case law.[3]
This article explores the modern trend toward recognition of claims for tortious interference with the right to inherit. It also explores related issues, such as the conflict between applicable tort statutes of limitations and the Colorado Probate Code non-claim statute when considering such claims, as well as potential damages.
Exhaustion of Probate Remedy
In McGregor v. McGregor, [4] the U.S. District Court for the District of Colorado imposed, as a prerequisite to a claim based on alleged tortious interference with inheritance, a requirement that the plaintiff first attempt to challenge any will or trust that is alleged to have given rise to the claim or, in the alternative, demonstrate that a traditional probate remedy is unavailable or inadequate under the circumstances of a particular case.[5] The majority of states that have addressed claims for tortious interference with inheritance or other expectancy generally have followed this same approach.
The rationale behind this limitation is reflected in the following excerpt from McMullin v. Borgers:
Since a successful will contest would have replaced the October will with the July will, plaintiff would have received his full expectancy and suffered no actual damages. . . . Allowing an action for tortious interference in a situation such as this would merely encourage plaintiffs to forego the proper remedy of a will contest based on undue influence for the more lucrative damage options available in a tort action. Such a result would offend the goals of the undue influence action which seeks to implement the true intentions of the testator. . . . Where, as in this case, a will contest provides essentially the same remedy and prevents any additional damages, we hold that an action for tortious interference will not lie.[6]
This same approach was followed in In re Estate of Hoover.[7] There, the Illinois appellate court upheld the trial court ’s dismissal with prejudice of the first three counts of plaintiffs’ complaint alleging intentional interference with their expectancies under the decedent’s will. In Milton v. Sackett, [8] this same court affirmed the trial court’s grant of summary judgment with regard to similar tort claims that had been alleged, along with traditional claims of undue influence and lack of testamentary capacity.
Under this common approach, if a will contest is available to the plaintiff, and a successful contest would provide complete relief, no tort action is available. Similarly, an action for tortious interference may not be brought where the offending will already has been formally probated and the plaintiffs had adequate notice of the probate proceeding and a fair opportunity to contest the will but failed to do so.[9]
However, a will contest clearly would not provide an adequate remedy in a situation where the plaintiff asserts that the defendant either prevented the decedent from making a will or induced the decedent to revoke an existing will, thus causing the estate to pass by intestate succession. No will contest would be available under these circumstances because no will would exist.
The Beckwith v. Dahl Opinion
With the 2012 decision in Beckwith v. Dahl , [10]California joined the ranks of the states that recognize what the court labeled the tort of intentional interference with expected inheritance (IIEI) as a valid cause of action.[11] In Beckwith v. Dahl, Beckwith and his partner MacGinnis were in a long-term, committed relationship for almost ten years. MacGinnis had no children and his parents were deceased. His sister Susan Dahl, with whom he had an estranged relationship, was his only legal heir. MacGinnis became ill and was hospitalized awaiting surgery. During this time, MacGinnis showed Beckwith his unexecuted will, which provided for his estate to be divided 50% to Beckwith and 50% to Dahl. Beckwith e-mailed Dahl a copy of her brother’s intended will and advised Dahl that MacGinnis was going to execute it before his surgery. Dahl responded, "I really think we should look into a trust to avoid probate." Dahl offered to contact an attorney to prepare a trust and told Beckwith to hold off on the execution of the will. MacGinnis ’s surgery led to complications and he died several weeks later, leaving an estate worth $1 million.
Following the death, Beckwith and Dahl met to discuss division of MacGinnis’s...
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