By: David M. Garten, Esq.
ARTICLE: Defenses To A Claim For Tortious Interference With An Expectancy In Probate & Trust Proceedings
Last month’s article discussed the elements of a claim for tortious interference with an expectancy (“tortious interference”) in Probate and Trust proceedings. This article will discuss defenses to a claim for tortious interference.
- Have you exhausted your probate remedies? If adequate relief is available in the probate proceeding, you must exhaust your probate remedies before a tortious interference claim can be pursued. See, DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981).
- Is your claim ripe? In Children’s Hospital, Inc. v. Owens, 754 So.2d 802 (Fla. 2nd DCA 2000), appellants were eight of twenty-eight charities among the residual beneficiaries of decedent’s will. Appellant/charities filed a civil suit against the decedent’s caretaker for a constructive trust and tortious interference. The caretaker was granted summary judgment. The appellate court affirmed, finding that if the charities could ever pursue a claim for tortious interference, the claim had not yet accrued because the estate administration was still pending, so the charities had not yet been damaged. The court also concluded that any attempts to retrieve estate property from the caretaker should be left to the administrator ad litem through proceedings in probate because the administrator ad litem can pursue claims for the benefit of all recipients under the will and that the charities’ action either duplicates those efforts or is an attempt to gain an advantage over the other beneficiaries.
- Are you collaterally estopped from pursuing your claim? The doctrine of collateral estoppel prevents identical parties from relitigating the same issues that have already been decided. Assuming a petitioner files suit in the probate division to vacate the will on the basis of undue influence and loses, collateral estoppel may prevent her from pursuing a claim for tortious interference on the same grounds. See, Kramer v. Freedman, 272 So. 2d 195 (Fla. 3rd DCA 1973) wherein the testator’s daughter unsuccessfully contested the probate of her father’s will, which excluded her. The daughter was collaterally estopped from pursuing a subsequent lawsuit for tortious interference.
- Has the statute of limitations run on your claim? A cause of action for tortious interference accrues upon the testator’s death. See, Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001); Whalen v. Prosser, 719 So. 2d 2 (Fla. 2nd DCA 1998); Tensfeldt v. Tensfeldt, 839 So. 2d 720 (Fla. 2nd DCA 2003).
- Do you have personal jurisdiction over the defendant? A minimal level of contact with Florida is sufficient to subject a non resident defendant to the personal jurisdiction of the Florida courts for allegedly committing an act of tortious interference. See, Watts v. Haun, 393 So. 2d 54 (Fla. 2nd DCA 1981) wherein the court held that Florida had personal jurisdiction over appellant because she committed the act of tortious interference by coming to Florida to take her father back to New York to prevent him from carrying out his intent to make the gift of the stock to appellees.
- Is the trust incorporated into the will? If the trust is sufficiently incorporated into the will, a plaintiff cannot properly challenge the validity of the trust on the basis of tortious interference without challenging the validity of the will because the will and trust are read together. See, Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012); Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1988).
- Did you file your claim in the proper division? All of the judges of the Circuit Court are authorized to exercise that court’s jurisdiction; therefore, the question is one of divisions of the court (probate division v. civil division) and which division handles which type of case. See, Guardianship of Bentley, 342 So. 2d 1045 (Fla. 4th DCA 1977); Payette v. Clark, 559 So.2d 630 (Fla. 2nd DCA 1990). Probate proceedings are in rem proceedings. Refer to §731.105, F.S. Because a claim for tortious interference is a claim for money damages against an individual, the lawsuit should be filed in the civil division. However, this rule may not apply to trusts. Compare, Palm Beach County Administrative Order No. 6.102.
- Is the testator deceased? As a general rule, a beneficiary does not have a vested claim for tortious interference until the testator’s death. But see, Carlton v. Carlton, 575 So. 2d 239 (Fla. 2nd DCA 1991) wherein the appellants, brothers of the deceased, brought an action against appellees, co-personal representatives of the estate of the deceased, alleging that the deceased intentionally interfered with appellants’ expected inheritance from their still-living parents. The court held that because the cause of action was actually against the deceased, appellants had only a limited time period in which to file their action. As such, the court reversed the lower court’s dismissal of the action, and remanded for further proceedings.