Tortious Interference With an Expectancy

Tortious interference with an expectancy of a gift or inheritance involves a wrongful act that results in financial damages, and may be grounds to assert a claim for punitive damages.

As the Fort Lauderdale probate litigation attorneys at The Ansara Law Firm can explain, the person who wrongfully interfered with that inheritance or gift could be found liable for the losses of the person who was expecting to receive it.

In layman’s terms, it means you may have a cause of legal action if an inheritance or your expectation of an inheritance or gift was diverted, destroyed or undercut by the intentional fraudulent actions of someone else.

Perhaps the most infamous case was $90 million tortious interference of an expectancy case filed against former Playboy Playmate Anna-Nicole Smith. The model married a much-older billionaire, yet Smith received no inheritance because her husband son and attorney made changes to various trusts promised to Smith. A court ultimately found Smith’s stepson had tortuously deprived her of her expectancy of a substantial inter vivos (between living people) gift from decedent. She was initially awarded $450 million, later reduced to $88 million, which included punitive damages.

As defined in Restatement (Second) of Torts § 774B, tortious interference with an expectancy involves one who uses fraud, duress or some other tortious (wrongful) means to prevent another from receiving from a third person an inheritance or gift they otherwise would have received.

Defining Inheritance or Gift

For purposes of this type of action, an “inheritance” describes any devise or bequest that otherwise would have been made under a testamentary instrument or any property or assets that would have been passed to a plaintiff by means of “intestate succession.” Intestate succession or “intestacy” means that if one dies without a will, the court distributes property according to the laws of the state, and it usually means property will go to spouse, children, parents or siblings – in that order.

When tortious interference of an expectancy refers to a will, it means the person “testator” (person who has made a will or given a legacy), has been induced by some tortious (wrongful) means to:

  • Make the will;
  • Not make it;
  • Change or revoke the will;
  • Not change or revoke it.

It can also apply when a will is forged, suppressed or altered. Our fort Lauderdale lawyers can advise you whether these circumstances may apply in your situation.

The term “gift” here applies broadly to any donation, gratuity or benefaction that the other would have received from a third person. It could also include an insurance policy, with which defendant has tortuously interfered (i.e., wrongly inducing the policyholder to change the beneficiary).

Proving Tortious Interference with an Expectancy

Tortious interference is a relatively new legal theory in Florida, first recognized with the 1966 case of Allen v. Leybourne. That was a case wherein one daughter sought action against another for tortuously interfering with a previous agreement the adult children had with their father to evenly split his estate between them when he passed. The court ruled that when there is an allegation a testator had a fixed intention to make a bequest favoring plaintiff AND there existed a strong probability the intention would have been carried out BUT FOR the wrongful acts of defendant, there exists a cause of action.

Prior to this, the court noted, cases of interference with an expectancy of a will or gift were denied because the testator might have simply changed his or her mind. While that remains a common defense in these matters, it does not prevent plaintiff from having the opportunity to prove otherwise.

It should be noted that one must prove the interference was tortious. That means showing there was defamation, fraud, duress, forgery, or some tortious abuse of fiduciary duty. Merely persuading someone who is of sound mind and body to disinherit a child does not make that persuader liable to the child.

In general, to recover damages under the doctrine of tortious interference of an expectancy, a plaintiff in Fort Lauderdale or elsewhere in Florida must establish:

  • Plaintiff had a reasonable expectation of/ agreement regarding receipt of a gift or benefit;
  • Defendant interfered with that expectancy or gift through tortious conduct, in the form of duress, fraud or undue influence;
  • Causation;
  • Plaintiff suffered damages/ losses as a result of the tortious conduct.

In a claim for tortious interference of an inheritance, the burden falls on the person bringing the claim.

Numerous recent cases have established these parameters of the elements.

For example, in one case before Florida’s Third District Court of Appeals, In re: Estate of Hatten, involved three sisters who alleged their three brothers had been disinherited by a fourth sister, who created a will prior to death. One surviving sister said she saw the will and another said she had spoken to decedent sister about it. The allegation was brothers tortiously interfered with this plan by destroying the will upon entering decedent’s property after death, depriving the sisters of about $700,000 in benefits. Trial court granted summary judgment in favor of defendants, after finding plaintiff’s evidence was all excluded under the hearsay rule.

However, on appeal, plaintiff successfully argued that, per the 1992 Fla. 3rd DCA decision in Walton v. Estate of Walton, that when a will isn’t found, there is a rebuttable presumption that decedent personally destroyed the will, intending to revoke it – but plaintiff had not been given proper chance to rebut that presumption. Further, plaintiff sisters argued the “Dead Man’s Statute” – F.S. 90.602 – as applied to a tortious interference case, could allow such testimony.

Not all states recognize tortious interference as a cause of action. In fact, only about half the states do, but Florida is one of them.

If you believe you have been denied a rightful inheritance or gift due to tortious interference or expectancy, contact our probate litigation attorneys.

Contact the Fort Lauderdale Lawyers at The Ansara Law Firm at (954) 761-3641 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.

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