By: David M. Garten, Esq.
ARTICLE: Tortious Interference With An Expectancy In Probate & Trust Proceedings
This article will discuss the elements of a claim for tortious interference with an expectancy (“tortious interference”) in Probate and Trust proceedings. Next month’s article will discuss defenses to this claim and strategic considerations in bringing/defending against this claim.
A cause of action for tortious interference is unusual in the sense that the plaintiff/beneficiary is authorized to sue to recover damages primarily to protect the decedent’s interest rather than the disappointed beneficiary’s expectations. The beneficiary is not directly defrauded or unduly influenced — the decedent is. Thus, the courts have created this cause primarily to protect the decedent’s right to dispose of property freely and without improper interference. See, Whalen v. Prosser, 719 So. 2d 2 (Fla. 2nd DCA 1998).
A beneficiary does not have a vested claim for tortious interference until the testator’s death; therefore, 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, supra; Tensfeldt v. Tensfeldt, 839 So. 2d 720 (Fla. 2nd DCA 2003).
To state a cause of action for tortious interference, the complaint must allege the following elements: (1) the existence of an expectancy; (2) interference of that expectancy through tortious conduct; (3) causation; and (4) damages. See, Claveloux, supra; Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980). Refer to the following cases where the allegations in the complaint were deemed sufficient to withstand a motion to dismiss: Allen v. Leybourne, 190 So. 2d 825 (Fla. 3rd DCA 1966); Davison, supra; and Watts v. Haun, 393 So. 2d 54 (Fla. 2nd DCA 1981). It is not necessary to state a cause of action for the underlying tort. See, Nationwide Life Insurance Company v. Perry, 2012 U.S. Dist. Lexis 146454 (S. Dist. Fla. 2012) (The court rejected the defendant’s argument that the tortious interference based on fraud must meet the heightened pleading requirements. The court reasoned that this was not a fraud claim, despite the fact that evidence of fraud may be used to prove the claim.).
Existence of an Expectancy: Plaintiff must prove an expectancy. For example, in Allen v. Leybourne, 190 So. 2d 825 (Fla. 3rd DCA 1966), plaintiff claimed that the defendant had tortuously prevented the decedent from making another will favoring the plaintiff. The court allowed the plaintiff to proceed with her claim because if the will offered for probate was defeated, her intestacy share would be less than her expectancy under the subsequent will. In Davison, supra, the plaintiff alleged that the decedent, her stepmother, had “formed an intention” to give the plaintiff the major portion of her estate by amending a revocable trust to leave the residue to the plaintiff. Although the decedent’s attorney drafted the amendment, the defendants convinced her not to sign it. In Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997), the decedent’s sons sued their step-mother alleging that she tortiously interfered with their inheritance rights, causing the decedent to reduce, over time, the amount they would inherit from him. Additionally, the plaintiff may have a claim against defendant for tortiously inducing the decedent to make inter vivos conveyances to the defendant, thereby reducing the size of the decedent’s estate and the beneficiary’s expectancy. See, DeWitt v. Puce, 408 So.2d 216 (Fla. 1981)(citing, Hegarty v. Hegarty, 52 F. Supp. 296 (D.Mass. 1943) and Cyr v. Cote, 396 A.2d 1013 (Me. 1979)); Peralta v. Peralta, 131 P.3d 81 (N.M. App. 2005).
Tortious Conduct: Plaintiff must prove that the defendant interfered with his inheritance through tortious conduct, i.e., fraud, duress, undue influence, defamation, abuse of fiduciary duty, forgery, alteration, or suppression of a will. See, Davison, supra; Watts, supra; Whalen, supra;Doughty v. Morris, 871 P.2d 380 (N.M. Ct. App. 1994). Mere negligence or even recklessness in breaching a duty to use reasonable care does not rise to the level of intentional (tortious) conduct. See, The Restatement (Second) of Torts, §774B, cmt. a.
Causation: Plaintiff must prove that he would have realized his inheritance but for the defendant’s tortious conduct. “There must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator or that the gift would have been made inter vivos if there had been no such interference.” See, Restatement (Second) of Torts §774B cmt. d.
Damages: Plaintiff must prove the value of the property that he would have been received, or the lost expectation had the tortious conduct not occurred. See, Restatement (Second) of Torts § 774B, cmt. e (“The normal remedy . . . is an action in tort for the loss suffered by the one deprived of the legacy.”). Punitive damages are not a valid expectation. See, DeWitt, supra.
Burden of Proof: The plaintiff is required to prove tortious interference with “reasonable certainty”. See, Davison, supra; Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3rd DCA 2012). In Saewitz, the court defined the term “reasonable certainty” with regard to damages as follows:
“Under the reasonable certainty rule, . . . recovery is denied where the fact of damages and the extent of damages cannot be established with a reasonable degree of certainty.” [citation omitted]. The amount of damages claimed need not be proven with exactitude, but it must not be based upon speculation or guesswork. [citation omitted]. “The standard for the degree of certainty requires that the mind of a prudent impartial person be satisfied with the damages.”. The proof adduced must be sufficiently definite for a reviewing court to perform its review obligation. [citation omitted].