Chapter 21 INTENTIONAL INTERFERENCE WITH INHERITANCE

• Jurisdiction: North Carolina

21 INTENTIONAL INTERFERENCE WITH INHERITANCE

A. Definition

Intentional interference with an inheritance or gift is an action recognized by the Restatement of Torts, which says that when someone intentionally, by fraud, duress, or other tortious means,¹ prevents another from receiving from a third person an inheritance or gift that the potential recipient would otherwise have received, he or she is subject to liability for loss of the inheritance or gift.²

North Carolina is one of only two states in the federal Fourth Circuit to permit a cause of action for intentional interference with an inheritance. While the Restatement is a useful guide to understanding the tort, North Carolina does not follow it.³

The earliest example of the action in North Carolina is found in Dulin v. Bailey,⁴ a 1916 case in which the plaintiff brought a tort action alleging the defendants conspired to remove a portion of a will under which she would have received a legacy. The North Carolina Supreme Court said the action seemed to be one of first impression in the state, and was "doubtless a very unusual one," but yet found "foundation and reason" for the action on well settled principles of law.⁵ Without citing Dulin, the court reached the same conclusion 20 years later in Bohannon v. Wachovia Bank & Trust Co.⁶ when it said that if there can be recovery for malicious and wrongful interference with the making of a contract, it could "see no good reason why there could not be recovery for malicious and wrongful interference with the making of a will." The action has received little attention since from North Carolina appellate courts, but as recently as 1985, the court of appeals confirmed that "North Carolina recognizes the existence of the tort of malicious and wrongful interference with the making of a will."⁷ However, in between Bohannon and that 1985 decision, the North Carolina Supreme Court handed down a decision,⁸ discussed below, that arguably brings into question the viability of the tort, but at least limits it.⁹

More recently, the Court of Appeals refused to recognize the existence of an action for tortious interference with an expected inheritance. North Carolina cases, said the court, do not stand for the proposition that an expected beneficiary can bring a claim during the lifetime of the testator.¹⁰

B. Elements

The elements of an action for intentional interference with an inheritance, as discerned by one commentary,¹¹ are:

(1) A valid expectancy,
(2) Intentional interference with that expectancy,
(3) Independently tortious conduct,
(4) Reasonable certainty that absent the tortious interference the plaintiff would have received the expectancy, and
(5) Damages.

Additionally, that a will contest will not be an adequate remedy may be considered as a sixth element.

C. Elements Defined

1. A Valid Expectancy

The inheritance that is the subject of the expectancy is defined by a Restatement commentary to include "any devise or bequest that would otherwise have been made under a testamentary instrument or any property that would have passed to the plaintiff by intestate succession."¹² Thus, under the Restatement, the plaintiff may recover when a will is forged, altered or suppressed if the testator was induced by tortious means to make an initial first will or not to make it, or was induced to change or revoke a will or not to change or revoke it. Proof of an expectancy may be shown by an earlier will, or even a draft or the testator's written intention.¹³ However, North Carolina courts do not require that high a hurdle. The plaintiff in Bohannon v. Wachovia Bank & Trust Co.¹⁴ met the first element by alleging his consanguineous relationship to the decedent — grandfather/grandson — and that the decedent "had formed the fixed intention and settled purpose of providing for the plaintiff in the distribution of his estate."¹⁵ In Johnson v. Stevenson,¹⁶ the plaintiff contended her brother and his wife employed undue influence and fraudulent acts to secure execution of a will by their parents. The will devised real property to the brother's children subject to a life estate in favor of their parents, but nothing to the plaintiff. The court said that one distinguishing factor between Bohannon and Johnson was that, in the former, the testator had a fixed intention to settle a large part of his estate on the plaintiff and was induced by false and fraudulent representations to abandon that intention. While a "fixed intention" may be sufficient to establish a valid expectancy, it must "consist of more than mere status as the potential intestate heir of a testate decedent."¹⁷

2. Intentional Interference with the Expectancy

Recklessness or negligence is not enough to support the action.¹⁸ Where, in Bohannon v. Wachovia Bank & Trust Co.,¹⁹ the plaintiff alleged the defendants conspired to deprive him of a share of his grandfather's estate by prevailing on the grandfather "to change a definite plan which he had made to leave to the plaintiff, either by will or a trust instrument, a large share in his estate,"²⁰ the plaintiff established a cause of action.

The North Carolina Supreme Court has observed that an action for intentional interference with inheritance is analogous to the right of action for wrongful interference with contractual rights by a third person.²¹ Therefore, some of the principles applicable to wrongful interference with contract may be pertinent to actions for intentional interference with an inheritance. In discussing wrongful interference with contract, North Carolina courts have said that where the third party (i.e., the contracting party), not the defendant, induces nonperformance, the plaintiff cannot established the claim,²² and alleging interference, but not intentional inducement of failure to perform, will not state a claim.²³

3. Independently Tortious Conduct

The plaintiff must prove "independently tortious conduct." Merely persuading someone by "legitimate means" to disinherit the plaintiff and leave the estate to the persuader instead does not produce liability.²⁴

A Restatement commentary contrasts intentional interference with inheritance with intentional interference with prospective contractual relations and says that, unlike in the case of the latter, liability for interference with inheritance is limited to situations in which the defendant interferes "by means that are independently tortious in character." Those means are usually, according to the Restatement commentary, fraud, duress, defamation,²⁵ abuse of fiduciary duty, or forging, altering or suppressing a will.²⁶ For example, in Dulin v. Bailey,²⁷ the plaintiff stated a cause of action by alleging the defendants "conspired and injured her by removing the clause of, and the signature to, what was a subsequent will by which she would have received a legacy." The court described the action as one of spoliation in which the plaintiff alleged the defendants prevented her from receiving the sum of money that was due her if they had not "fraudulently altered and defaced the subsequent will." The complaint in Bohannon v. Wachovia Bank & Trust Co.²⁸ alleged conspiracy and "false and fraudulent representations" made to the decedent, as well as fraud practiced on both the decedent and plaintiff, and also stated a cause of action.

4. Reasonable Certainty that Absent the Tortious Interference the Plaintiff Would Have Received the Expectancy

While the early case of Dulin v. Bailey²⁹ didn't specifically address the fourth element, it found that the plaintiff stated a cause of action where she alleged that by fraudulently altering and defacing a will, the defendants prevented her from "receiving the sum of money which was due." Bohannon v. Wachovia Bank & Trust Co.³⁰ was more explicit, finding a cause of action was stated where the plaintiff alleged the decedent had "formed the fixed intention and settled purpose of providing for the plaintiff and in the distribution of his estate, and would have carried out this intention and purpose but for the wrongful acts" of the defendants.³¹ The Restatement has a commentary that says an important limitation on the action is that "there can be recovery only for an inheritance . . . that the other would have received but for the tortious interference of the actor." There must be "proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator . . . if there had been no such interference."³²

5. Damages

The few cases that have discussed the tort have said nothing about damages other than that the measure of damages is the legacy of which the plaintiff has been deprived.³³

6. A Will Contest Will Not Be an Adequate Remedy

In Dulin v. Bailey,³⁴ the earliest North Carolina case on intentional interference with inheritance, the court said the plaintiff could recover for the wrong done to her by the defendant's conspiracy and destruction of the will at issue if she could not prove the "destroyed will because [she is] unable to prove the entire contents thereof." Taking the pertinent cases—Dulin, Bohannon and Johnson — it must be shown that a will contest, caveat proceeding, would not be an adequate remedy before the tort action may be maintained.³⁵

In Holt v. Holt,³⁶ the court made clear that a plaintiff has no standing to maintain the tort action for interference with inheritance until any probated paper writing³⁷ is declared invalid as a testamentary instrument in a caveat proceeding.³⁸ The court confirmed the Holt conclusion in Johnson v. Stevenson,³⁹ where the plaintiff sought to impose a constructive trust. The court said the grounds on which the plaintiff sought to establish a constructive trust were equally available to directly attack the will by caveat, and since the right of direct attack by caveat gave the plaintiff a full and complete remedy at law, she was not entitled to equitable relief.⁴⁰

It has been argued by one commentary⁴¹ that when...