Intentional Interference with Inheritance, 0321 SCBJ, SC Lawyer, March 2021, #22

AuthorPatrick C. Wooten
PositionVol. 32 Issue 5 Pg. 22

Intentional Interference with Inheritance

Vol. 32 Issue 5 Pg. 22

South Carolina BAR Journal

March, 2021

An Important Tort in Inheritance-Related Litigation, but Is It Viable in South Carolina?

Patrick C. Wooten


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.[1] One inevitable side effect will be an increase in inheritance-related litigation. The most familiar type of inheritance-related dispute is the will contest. However, outside of South Carolina, another type of inheritance-related dispute has grown in popularity over the past few decades—namely, the tort claim for intentional interference with inheritance (“IIWI”). And, in 2015, the South Carolina District Court predicted that, if given the opportunity, the South Carolina Supreme Court would recognize the tort of IIWI.[2] If IIWI is, in fact, a viable tort in South Carolina, it could change the landscape of inheritance-related litigation in South Carolina, providing a more plaintiff-friendly environment for such disputes.

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.[5] Further, South Carolina law emphasizes that a testator does not lack testamentary capacity merely because she lacks a reasonable basis on which to establish her like or dislike of her family members.[6] A contestant seeking to invalidate a will on undue influence grounds also has a high burden: he must present evidence which “unmistakenly and convincingly shows the [testator’s] will was overborne by the defendant or someone acting on his behalf.”[7]

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.[8]

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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