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Power of Attorney – What happens when the holder says no?

Written by on Mar 16, 2009| Posted in: Probate Litigation

Can an agent’s failure to make gifts create liability for intentional interference with an expectancy?When someone executes a Power of Attorney in favor of another person, usually a trusted relative or friend, its vests enormous power and duties on the agent. With this power and responsibility comes potential liability if the agent acts in a manner that falls short of the law’s expectations. The question of how far that liability stretches is frequently an issue that is fiercely disputed in probate court. A recent opinion from the Georgia Supreme Court explores the issue of whether an agent’s failure to make changes to a last will and testament directed by the principal can constitute the basis of an intentional interference with an expectancy claim.

Generally, the law in Florida and most other states that recognize the tort of intentional interference, hold that in order to state a cause of action for intentional interference with an expectancy of inheritance, the complaint must allege the following elements: (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages. Schilling v. Herrera, 952 So.2d 1231 (Fla. 3d DCA 2007). For example, a cause of action for the tort of interference with a testamentary expectancy is available where the defendant has maliciously destroyed a will, and the plaintiff is unable to reestablish the destroyed will in a probate proceeding. In re Estate of Hatten, 880 So.2d 1271 (Fla. 3d DCA 2004).

In Morrison v. Morrison, 663 S.E.2d 714 (Ga. 2008), the court faced the following factual scenario: the decedent, Bill Morrison gave his son, Ralph, a power of attorney in 1986 and executed wills in 1988, 1995, and 1998. In 2003, Decedent made notes of potential changes on a copy of the 1998 will and, two weeks before he died in June 2004, mailed them to an attorney. While Decedent was incapacitated prior to his death, Ralph discovered a copy of those notes along with a handwritten message addressed to him, which stated, “If anything happens to me before I am able to write my new will, please see and abide by the changes I have inked in on this … 1998 will…. I know you will do as I ask of you…. Please do as I ask/legal or not.”

After the death of Decedent, the 1998 will was offered for probate court by Ralph who was the named executor. Decedent’s other sons then sued Ralph in court on a theory of intentional interference with a gift, and fraud. The claims were based upon Ralph’s alleged failure to transfer property to decedent’s other sons in his capacity as Decedent’s attorney in fact in accordance with the directions in his handwritten notes.
A majority of justices of the Georgia Supreme Court observed that although the 2003 notes and instructions to Ralph did not constitute a completed inter vivos gift, that circumstance alone does not foreclose a claim of intentional interference with a gift: “That claim, like the other non-fraud claims, is based upon the allegation that Ralph failed to use his power of attorney prior to the testator’s death to comply with his written directions. [The]claim that [Ralph] interfered with an economic expectancy, specifically an expected gift…[E]vidence that the gift was not fully executed does not negate the viability of the claim. To the contrary, the incomplete nature of the gift is actually a logical and necessary element of the tort of intentional interference with an expected gift.

A scathing dissent was authored by one of the judges who adhered to a view shared by many probate practitioners: that the tort claim constitutes an unauthorized collateral attack on the will which was determined by the probate court to be the valid last will and testament of the decedent.

These cases always turn on the specific facts and circumstances surrounding the alleged fraudulent activity. In my view, the recognition of a cause of action for intentional interference is expanding to include more areas of potential liability for person’s acting (or failing to act when they should) on behalf of someone who is relying on them.

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