Torts and estates: remedying wrongful interference with inheritance.

• Author: Goldberg, John C.P.
• Position: Introduction through II. The Emergence of the Interference-with-Inheritance Tort, p. 335-365

INTRODUCTION I. FREEDOM OF DISPOSITION AND THE LAW OF INHERITANCE A. Freedom of Disposition B. Safeguarding Freedom of Disposition Through Will Contests and Restitution Actions 1. Will contests a. Inferences, presumptions, and burden shifting b. Other specialized procedural rules 2. Restitution by way of constructive trust a. Remedying wrongful interference with will formation or revocation b. Remedying "extrinsic fraud" c. The capaciousness of restitution II. THE EMERGENCE OF THE INTERFERENCE-WITH-INHERITANCE TORT A. Nineteenth and Early Twentieth Century Doctrine B. The First and Second Restatements of Torts C. Recognition in Contemporary Law III. REDUNDANCY AND CONFLICT WITH INHERITANCE LAW A. Bohannon and the Confused Origins of the Tort B. An Unnecessary Tort: The Forgetting of Restitution 1. Interference with a nonprobate transfer 2. Fraud in connection with a probate proceeding 3. Inter vivos transfer that depletes the estate C. Reform Without Reason and "Adequacy of Probate" 1. Rivaling the will contest 2. Unprincipled application of the "adequacy of probate" rule IV. THE INCONGRUITY OF INTERFERENCE WITH INHERITANCE AS A TORT A. Interference with Inheritance as a Derivative Claim B. Interference with Inheritance as a Primary Claim 1. Multiple primary claims versus derivative claims 2. The implausibility of a right in the expectant beneficiary 3. The special case of malicious interference C. The Realist Conception of Tort: Law and Equity Revisited 1. The imperialism of Realist tort 2. Law, equity, and the inapt analogy to legal malpractice CONCLUSION INTRODUCTION

Spurred by an innovative Restatement provision (1) and two U.S. Supreme Court decisions in a case involving former Playboy Playmate Anna Nicole Smith, (2) courts, lawyers, and legal scholars are increasingly inclined to recognize a tort cause of action for wrongful interference with an expected inheritance. An extension of actions for interference with contract and commercial expectancies, the interference-with-inheritance tort subjects to liability one who, by tortious means, intentionally prevents another from receiving an inheritance. (3)

For example, suppose that Goneril fraudulently induces Lear to execute a new will in Goneril's favor and to revoke Lear's prior will in favor of Cordelia. (4) Under section 774B of the Second Restatement of Torts and case law in about twenty states, (5) Cordelia can sue Goneril for tortious interference with Cordelia's expected inheritance, have the claim tried before a jury, and recover compensatory damages (including damages for pain and suffering) and possibly punitive damages. In some states, Cordelia can commence her tort suit prior to Lear's death even though Lear could thereafter change his will yet again. (6)

Bucking the current trend, we argue that the interference-with-inheritance tort should be repudiated. Because courts are increasingly being asked to recognize the tort, (7) because the American Law Institute (ALI) will revisit the instigating Restatement provision in the next few years, (8) and because we are in the midst of a massive intergenerational transfer of wealth, (9) the soundness of the tort is a pressing policy issue in need of close scrutiny.

The tort is problematic because it is both redundant and in conflict with the law of inheritance, (10) The organizing principle of American inheritance law is the donor's right to freedom of disposition. (11) A prospective beneficiary's expectancy of a future inheritance is entirely dependent on the donor's exercise of this right in favor of the beneficiary. Inheritance law thus does not afford a prospective beneficiary direct recourse for harm suffered as a consequence of a third party's interference with the beneficiary's expected inheritance. Instead, the disappointed expectant beneficiary may bring actions in probate or in restitution by way of constructive trust to vindicate the donor's right to freedom of disposition.

Accordingly, in almost any circumstance in which a prospective beneficiary could make out a tort claim to remedy wrongful interference with an expected inheritance, those same interests could be vindicated through the traditional inheritance law procedures of a probate will contest or an action in restitution. The remaining circumstances in which the tort has been invoked, typically involving fraud in a probate proceeding or wrongful procurement of an inter vivos transfer that depletes the decedent's estate, are likewise covered by well-established non-tort procedures.

What makes the redundancy between tort law and inheritance law pernicious is that tort, as a general law of wrongful injury, is ill-suited to posthumous reconstruction of the true intent of a decedent. Such an undertaking, which is hampered by the inability of the decedent to give testimony to authenticate or clarify his intentions, requires the court to distinguish between legitimate persuasion and "undue influence" or "duress," and to do so in the context of nuanced family dynamics and customs that are often inaccessible to outsiders. In contrast to tort law, inheritance law has developed a host of specialized doctrines and procedures to deal with these difficulties. (12) There is thus little reason to suppose that tort concepts and procedures, which have developed primarily to deal with less subtle forms of injurious misconduct, will help courts better distinguish a bona fide claim of wrongful interference from a strike suit by a disappointed expectant beneficiary.

Because the interference-with-inheritance tort changes the rules under which inheritance disputes are litigated and offers different remedies than inheritance law, recognition of the tort is in truth recognition of a rival legal regime for addressing these same problems. The tort allows a disappointed expectant beneficiary to choose his preferred rules of procedure and potential remedies--the specialized rules of inheritance law, or the general civil litigation rules of tort law. This development is troubling because it has arisen without consideration of the reasons for the specialized rules of inheritance law. Courts have offered little justification for the creation of this alternative regime. Some have reasoned, incoherently, that the tort is redundant with inheritance law yet necessary to fill gaps in that law. Other courts have allowed interference claims to proceed under different rules and to obtain different remedies for no other reason than the plaintiff chose to sue in tort rather than to bring a will contest or an action in restitution.

This pattern of unreflective law reform might be understandable if interference with inheritance presented a clean example of tortious conduct. But in fact it makes for an awkward tort. (13) As stated authoritatively in section 774B of the Second Restatement of Torts, an interference-with-inheritance claim must be premised on conduct that is "independently tortious" in character--that is, the sort of wrongful conduct that would in other contexts support tort liability. (14) Yet neither undue influence nor duress, both typical allegations in these kinds of cases, is independently tortious in this sense. (15)

More fundamentally, the interference-with-inheritance tort runs afoul of the basic principle that a tort claim vindicates the plaintiff's own right not to be mistreated rather than the rights of others. In Justice Cardozo's canonical formulation, a tort plaintiff must "sue[] in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another." (16) Yet in the teeth of this principle, some courts have characterized the tort as a means by which an expectant beneficiary can vindicate the donor's right to freedom of disposition. (17)

Other courts have characterized the interference-with-inheritance claim as alleging that the defendant's interference with the donor's intended disposition is also a violation of a freestanding right of the beneficiary. (18) But recognizing in the beneficiary a right to an expected inheritance brings tort law into direct conflict with the principle of freedom of disposition that undergirds inheritance law. The fundamental conflict between protecting an expected inheritance under the rubric of tort law while denying protection to the same interest under the rubric of inheritance law distinguishes the expectation of an inheritance from those "prospective advantages" that courts, working at the edges of tort doctrine, have sometimes protected from wrongful interference. (19)

The failure of courts and commentators to confront the conceptual and practical problems of the interference-with-inheritance tort is symptomatic of a larger wrong turn in modern thinking about tort law. The last seventy years have witnessed the rise to dominance of a "Realist" conception of tort law. On this view, tort law is a general grant of power to courts to shift losses from victims to antisocial actors when doing so might serve the goals of deterrence or compensation. The Realist conception strips away the structure and substance of tort law, including the core tenet that the plaintiff must establish that the defendant's conduct infringed a right personal to the plaintiff. Reduced to an open-ended invitation to courts to shift losses in the name of policy, tort threatens to swallow more structured bodies of law--in this instance, probate and restitution.

When legal academics today hail the virtues of interdisciplinary study, they have in mind the use of analytical methods developed in other disciplines, such as economics, psychology, and the other social sciences. An implicit claim of this Article is that interdisciplinary study across fields of law is no less important. That the ALI endorsed and the courts then recognized a new tort that so profoundly conflicts with fundamental inheritance law rules and policies is a clear example of the need for coordination among experts in different...