Torts and estates: remedying wrongful interference with inheritance.

• Author: Goldberg, John C.P.
• Position: III. Redundancy and Conflict with Inheritance Law through Conclusion, with footnotes, p. 365-398

3. REDUNDANCY AND CONFLICT WITH INHERITANCE LAW

   The interference-with-inheritance tort is at best a redundancy. A person whose expectancy of an inheritance is frustrated by a third party's wrongful interference with the decedent's right to freedom of disposition may bring a will contest in probate or, if the probate court cannot offer adequate relief, may bring an action in restitution seeking the equitable remedy of constructive trust.

   The problem with this redundancy is that it creates a potential, realized in many of the cases discussed below, for a rival legal regime. When a claim for wrongful interference with the donor's freedom of disposition is pursued in a will contest or an action in restitution, it is governed by specialized rules and procedures that reflect principled (if contestable) policy judgments about how best to address the "worst evidence" problem inherent in finding the true intent of a deceased person. (197) By resolving inheritance disputes on different procedural and remedial terms, the tort allows a disappointed beneficiary to circumvent those rules and procedures. Consequently, recognition of the tort has invited disappointed expectant beneficiaries to pick their preferred procedures and remedies--those of tort, or those of inheritance low. (198)

   The emergence of a rival tort regime for resolving inheritance disputes is troubling because it has not been accompanied by any serious consideration of whether adjudication in tort is preferable on grounds of policy. Quite the opposite, courts have recognized the tort primarily out of ignorance and confusion. In some cases, they have overlooked the availability of relief in restitution, recognizing the tort in order to fill a mistakenly perceived remedial gap. In other cases, they have substituted tort rules for inheritance law for no other reason than the plaintiff chose to plead a tort rather than bring a will contest or an action in restitution. In neither circumstance can one be optimistic that tort law will improve the adjudication of claims of wrongful interference with the donor's freedom of disposition.

   1. Bohannon and the Confused Origins of the Tort

      Confusion about the need for the interference-with-inheritance tort and its overlap with established inheritance law procedures traces all the way back to Bohannon v. Wachovia Bank & Trust Co., (199) perhaps the first case formally to recognize the interference-with-inheritance tort. (200) In that case, the court suggested that (1) the tort was necessary to fill a gap so as not to leave a disappointed expectant beneficiary without a remedy for wrongful interference with his expected inheritance, and (2) the tort was justified by precedents allowing such a beneficiary to recover in an action in restitution by way of constructive trust. (201) These arguments are contradictory. If precedent established that a restitution action would lie on the facts alleged, there was no gap for the tort to fill.

      The plaintiff in Bohannon alleged that 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]." (202) Analogizing to actions for wrongful interference with a contractual expectancy, the court deemed the plaintiff to have stated a valid cause of action. (203) The court summed up the rationale as follows: "There is an old maxim of the law, 'No wrong without a remedy.'" (204)

      This rationale supposes that the plaintiff would have lacked a remedy unless the court recognized the tort. But the availability of relief in restitution to prevent unjust enrichment from the wrongful obstruction of the making of a will (as in Latham v. Father Divine) or the wrongful obstruction of the revocation of a will (as in Brazil v. Silva) was by this time already established. (205) Indeed, just a few months after the decision in Bohannon, the ALI published the First Restatement of Restitution, which, as we have seen, codified this principle. (206)

      Foreshadowing Prosser's move in the Second Restatement of Torts, (207) the court suggested that one of the old writs under which tort actions once were brought--the "action on the case"--allowed recovery "whenever a man does an act which, in law and in fact, is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce such an injury." (208) In truth, the common law of torts had never recognized a cause of action derivative on the violation of a right of a third party, a point on which we elaborate below. (209) Instead, this conception of tort is an early manifestation of the Realist theory of tort advanced by Prosser and his sympathizers. (210)

      In support of the "action on the case" as an all-purpose remedy for wrongfully caused losses, Bohannon relied heavily on Mitchell v. Langley, decided in 1915 by the Georgia Supreme Court. (211) But Mitchell is a poor precedent for Bohannon. In Mitchell, the plaintiff had made "some allegations ... looking in the direction of equitable relief," but had framed the claim "as one for damages." (212) In other words, the court was faced with a claim for restitution by way of constructive trust that had been mispleaded as a tort claim for damages.

      To get around this pleading problem--that is, to allow the plaintiff to bring in a law court what was in truth a petition for equitable relief--the Mitchell court invoked the action on the case. (213) The court cited the principle that "the original beneficiary" could have brought an "equitable petition to have a trust declared in his favor, if the benefit which would have accrued to him was diverted from him and the fund went into the possession of another by means of fraud." (214)

      Accordingly, in asserting the need for a novel tort cause of action to fill a remedial gap, Bohannon relied on a precedent that had explicitly recognized that restitution by way of constructive trust already filled this gap. Tort came into the picture in Mitchell only because of the mispleading in that case. Years later, the same contradiction would surface in the efforts of Prosser and John Wade, who succeeded Prosser as Reporter for the Second Restatement of Torts, to justify section 774B. They argued that case law support for the interference-with-inheritance tort could be found in cases of restitution. (215) Neither Bohannon nor Prosser and Wade acknowledged the contradiction in urging the necessity of a gap-filling tort by pointing to existing causes of action that covered the same ground but on different procedural terms. (216)

   2. An Unnecessary Tort: The Forgetting of Restitution

      Following the promulgation of section 774B, some courts have recognized the tort on the grounds that it is necessary to fill a remedial gap. Without the tort, these courts reason, the disappointed expectant beneficiary would have no recourse, leaving the decedent's right to freedom of disposition unprotected. But this reasoning is based on a false premise. In virtually every case in which the tort has been recognized in the absence of relief in probate, the plaintiff could have brought an action in restitution for constructive trust. Here we consider three typical examples: (1) interference with a nonprobate transfer, (2) fraud in connection with a probate proceeding, and (3) an inter vivos transfer that depletes the decedent's estate.

      1. Interference with a nonprobate transfer

         The recipient of any form of donative transfer is liable in restitution if the transfer was obtained by fraud, duress, or undue influence, and if adequate relief is not available in probate. (217) Thus, wrongful interference with a will substitute, such as an inter vivos trust or a pay-on-death contract, is remediable through the equitable device of constructive trust. In some states, however, a disappointed beneficiary may alternatively bring suit in tort. (218) Some commentators, too, have urged recognition of the tort in such circumstances. (219)

         Davison v. Feuerherd, decided just after the promulgation of section 774B, is representative of this type of case. The decedent's stepdaughter sued certain of the decedent's caretakers for tortious interference with the stepdaughter's expectation of taking under the decedent's inter vivos trust. (220) The stepdaughter sought compensatory damages, litigation costs, and punitive damages. (221)

         The decedent, an octogenarian, had intended to give the stepdaughter "the major portion" of her estate by way of an amendment to her revocable trust. (222) The decedent had even instructed an attorney to draft the necessary documents. The decedent never finished the amendment process, however, because her caretakers falsely persuaded her that her stepdaughter did not love her and was not worthy of receiving her estate. (223) The caretakers threatened to quit caring for the decedent.

         Invoking Prosser's treatise, section 774B of the Second Restatement, and Bohannon and Mitchell, the court upheld the complaint as stating a valid cause of action. The court reasoned that even though "the donor has the privilege of changing his mind," the interference-with-inheritance tort protects "the expectancy status" of the plaintiff. (224)

         As in Bohannon, the opinion in Davison reads as if the plaintiff would not have had recourse without the tort. But the plaintiff could have brought an action in restitution for constructive trust. (225) Instead, because the plaintiff styled her claim as sounding in tort, she was entitled to demand punitive damages and a trial by jury under a preponderance of the evidence standard. (226) In Davison, therefore, the tort functioned as a rival cause of action with different, more plaintiff-friendly procedural and remedial rules. The trend in inheritance law, by contrast, has been toward unifying will contest procedures with those for posthumous trust contests, (227) consistent with a "policy of...