Intentional Interference with Inheritance, 0321 SCBJ, SC Lawyer, March 2021, #22
Author | Patrick C. Wooten |
Position | Vol. 32 Issue 5 Pg. 22 |
An Important Tort in Inheritance-Related Litigation, but Is It Viable in South Carolina?
Patrick C. Wooten
Introduction
In what
many financial experts are calling the “great wealth
transfer,” the Baby Boomer generation is expected to
transfer roughly $30 trillion in wealth to younger
generations over the coming decades.
The purpose of this article is to address several questions relating to IIWI, including: how the tort claim is different from will contests; whether the South Carolina Supreme Court is, in fact, likely to adopt the tort of IIWI, as the South Carolina District Court has predicted; and, if the South Carolina Supreme Court does adopt the tort, when the tort is likely to be available to plaintiffs.
Comparing will contests and tort claims for IIWI
The most common scenario giving rise to inheritance-related litigation is where a testator’s estate plan initially includes a bequest to a family member, but the testator amends his or her estate planning documents—often shortly before death when the testator’s health is in decline—to reduce or eliminate the bequest to such family member. After the testator’s death, the disfavored family member may challenge the validity of the amended will or trust on various grounds, including “undue influence, fraud, duress, mistake, revocation, or lack of testamentary intent or capacity,”[3] and seek to probate an earlier version of the will or enforce an earlier version of the trust. Of course, while this is a common fact pattern, a wide variety of alternative scenarios—including those involving inter vivos gifts, the destruction of a will or trust, or a family member interfering with a testator’s ability to make a planned amendment to his estate plan—also may give rise to inheritance-related litigation.
Will
contests are governed by the South Carolina Probate Code,
which is Title 62 of the South Carolina Code. Although South
Carolina law (unlike the law of some other states) does
provide a right to a jury trial for will con-tests,[4] the law
governing these disputes is generally unfavorable to the
party challenging the will (the “contestant”).
The most common grounds for challenging a will are lack of
testamentary capacity and undue influence. A contestant
seeking to prove a testator lacked testamentary capacity has
the high burden of demonstrating that the testator not only
did not know, but also lacked the capacity to know, the
nature of her assets, the natural objects of her affection
(i.e. her family members), or to whom she wished to leave her
assets.
Meeting
the high burdens of demonstrating lack of testamentary
capacity or undue influence is especially difficult because,
among other things: 1) the testator, who typically is the
most important witness regarding capacity and undue
influence, is dead at the time of litigation (a problem
scholars refer to as the “worst evidence”
problem); and 2) South Carolina’s Dead Man’s
Statute, with certain important exceptions, prohibits
witnesses who are interested in the outcome of the litigation
from testifying about communications or transactions with the
testator.
Moreover, a contestant who brings a will or trust contest will be adverse to the personal representative or trustee, and South Carolina law authorizes personal representatives and trustees to pay their legal fees out of the estate or trust.[9] Thus, in a will or trust contest, the contestant is typically dissipating the estate (thereby reducing any potential recovery) and coming out of pocket for his attorneys’ fees, whereas his adversary is relying on the estate to fund his defense. This asymmetry makes will contests even less favorable to the contestant.
A tort claim for IIWI, however, is an entirely different animal. Rather than challenging the validity of estate planning documents, the plaintiff is suing the alleged “interferer” for damages. The plaintiff must prove the elements of...
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