Chapter 53 - § 53.18 • TORTIOUS INTERFERENCE WITH INHERITANCE

• Jurisdiction: Colorado

§ 53.18 • TORTIOUS INTERFERENCE WITH INHERITANCE

The Restatement (Second) of Torts § 774B (1979) states with regard to tortious interference: "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."

Colorado state courts have long recognized the tort of tortious interference with contractual rights. Amoco Oil Co. v. Ervin, 908 P.2d 493 (Colo. 1995). See also Anderson, "Tortious Interference Law in Colorado: A Practitioner's Guide," 30 Colo. Law. 8 (Aug. 2001). CJI-Civ. 24:1 (CLE ed. 2020). 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. A 1999 Tenth Circuit Court of Appeals decision assumed for purposes of its decision that Colorado state courts would recognize this common law tort. Lindberg v. United States, 164 F.3d 1312 (10th Cir. 1999). See also Peffer v. Bennett, 523 F.2d 1323 (10th Cir. 1975). The U.S. District Court for the District of Colorado in McGregor v. McGregor, 101 F. Supp. 848 (D. Colo. 1951), aff'd, 201 F.2d 528 (10th Cir. 1953), also recognized the tort in a diversity case, without citation to any Colorado case law.

§ 53.18.1—Exhaustion of Probate Remedy

The federal district court in McGregor 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. McGregor, 101 F. Supp. at 850. The majority of states that have addressed claims for tortious interference with inheritance or other expectancy have generally followed this same approach.

The rationale behind this limitation is reflected in the following excerpt from McMullin v. Borgers, 761 S.W.2d 718, 720 (Mo. App. 1988):

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.

This same approach was also followed in In re Estate of Hoover, 513 N.E.2d 991 (Ill. App. 1987), upholding the trial court's dismissal with prejudice of the first three counts of the plaintiffs' complaint alleging intentional interference with their expectancies under the decedent's will, and in Minton v. Sackett, 671 N.E.2d 160 (Ind. App. 1996), affirming the trial court's grant of summary judgment with regard to similar tort claims, which 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 has already 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. See M. Marmai, "Tortious Interference with Inheritance: Primary Remedy or Last Recourse," 5 Conn. Prob. L.J. 295 (1991).

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...