Florida Probate Litigation Lawyer Blog
Tortious interference with an expected inheritance occurs when someone intentionally prevents, through fraud, duress, or other tortious means, another person from receiving an inheritance or gift that other person otherwise would have received. Many states today, including Florida, recognize the tort of tortious interference with an expected inheritance. Even the Supreme Court of the United States has acknowledged tortious interference with an expected inheritance to be a “widely recognized tort.”
In Florida, to establish a claim for tortious interference with an expected inheritance, a plaintiff must allege (1) that he or she had an expectancy of receiving an inheritance; (2) that the defendant intentionally interfered with that expectancy through tortious conduct; (3) that the intentional interference caused the expectancy to change; and (4) that the plaintiff suffered damages as a result. However, when a person has an adequate remedy available in probate proceedings, as opposed to regular civil proceedings, he or she must pursue and exhaust the probate remedy before a tortious interference claim may be pursued in civil court. This rule stems from the seminal case, Dewitt v. Duce, 408 So. 2d 216 (Fla. 1981), which centered around whether heirs were precluded from asserting a claim for tortious interference with an inheritance when the heirs had an opportunity to contest the validity of the will in probate proceedings but had not done so.
In Dewitt v. Duce, the decedent’s will was admitted to probate, and the plaintiffs first filed a petition to revoke the probate of the will, but later withdrew that petition and instead chose to inherit under the terms set forth in the will instead of contesting its validity. Several years later, the plaintiffs decided to pursue an action for wrongful interference with an inheritance, claiming that the decedent’s former housekeeper had exercised undue influence over the decedent at a time the decedent lacked testamentary capacity. The plaintiffs argued that the alleged undue influence caused the decedent to revoke a previous will and replace it with the final will. That final will left less inheritance to the plaintiffs than they would have inherited under the decedent’s previous will. Florida law at the time, which remains the same today under Fla. Stat. § 733.103(2), provided that the probate of a will was to be conclusive in any collateral action related to the property in question. A collateral action, also known as a collateral attack, is an action that attempts to overturn a judgment in another case.
In Dewitt v. Duce, the Florida Supreme Court determined that because the previous will that was more favorable to the plaintiffs still existed, the plaintiffs could have offered the more favorable will during the probate proceedings in a challenge to the final will. Therefore, because the plaintiffs had an opportunity for an adequate remedy in probate proceedings, they were not able to assert a claim for tortious interference with their expected inheritance in civil proceedings. This case highlights the well settled rule in Florida that in order to argue that a decedent lacked testamentary capacity to execute the document or was unduly influenced to alter his or her will, the claim must be asserted during probate proceedings instead of through a civil claim after the will has been probated.
However, in Florida, not seeking a remedy during the probate proceedings still permits a person to seek damages after probate proceedings as long as the alleged loss was either (1) caused by things other than the validity of the will, or (2) concerns something other than probate documents. For example, trust assets that are not incorporated by reference into the will are not a part of probate proceedings. Consequently, as confirmed in Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997), the failure to challenge a trust during a probate proceeding would not preclude someone from later filing a civil action for tortious interference with the trust.
The case of Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007) further clarified that to assert a claim of tortious interference with an expected inheritance in Florida, the plaintiff must show circumstances surrounding the tortious conduct that precluded adequate relief in the probate proceedings. As Schilling v. Herrera explained, one example of such conduct is fraud in the prevention of the will contest (as opposed to fraud in the making of the will). Another example would be when the fraud was not discovered until after probate, so bringing the challenge during the probate proceedings would have been impossible.
Undoubtedly, probate matters may contain elements such as fraud, breach of fiduciary duty, civil theft, and tortious interference. Because pursuing claims after a will has been admitted to probate largely depend on the probate proceedings, you should discuss these elements and potential causes of action with an attorney before probate proceedings have concluded, and ideally before they are commenced. The experienced legal team at Chepenik Trushin can help guide you if you believe you have a potential claim for tortious interference with an expected inheritance, or if you need assistance with any other probate or estate planning matter. Please do not hesitate to contact us for an initial consultation.
