Blogs from April, 2013


 Remedies Available in Florida Courts

Tortious interference with an inheritance is a relatively new but widely recognized tort that is currently accepted in Florida and half of the United States.  Many other states have reported cases from their state Supreme Court or appellate level addressing the tort, but declining to determine whether it is recognized.  Clearly, the trend is moving toward national acceptance and recognition of the tort.

The importance of the availability of the tort cannot be understated.  It serves many purposes, especially in Florida, where elderly and vulnerable adults are preyed upon by unscrupulous persons seeking to financially exploit Florida’s elderly citizens.    The tort provides a remedy in the form of money, a civil remedy, to a person who believes that another has wrongfully interfered with an inheritance.  The remedy is awarded by the civil court, not the probate court, and the money award is paid by the person who interfered with the inheritance, not the estate.

In Florida, as inheritance dispute lawyers, we see that the tort provides a remedy to a variety of wronged persons who would otherwise be left without a remedy without the tort, while the person who has committed the wrong and interfered with the inheritance can act with impunity.  Sometimes, these wrongdoers are financial institutions and banks who have committed the tort for their own selfish financial gain.  These institutions wield a powerful weapon in the form of an unlimited litigation budget to contest any challenge to the institution’s unlawful conduct.  However, because Florida recognizes the tort of interference with an inheritance, wrongfully excluded beneficiaries who have been victimized by a person or bank’s bad conduct, may present their case to a jury, a group of other Florida citizens, who are well equipped with common sense to recognize a case of tortious interference when evidence demonstrates that an elderly or vulnerable person has been taken advantage of.

The availability of a civil jury trial in these cases serves many useful functions, including the ability of the jury to award punitive damages and to deter similar conduct by banks and other unscrupulous persons.    Equitable remedies such as constructive trust, restitution, or the mere voiding of an invalid trust amendment procured by fraud, offer no deterrent at all to the tortious conduct frequently encountered in the probate context

The primary function of jury trials and tort liability is to deter certain kinds of conduct by imposing liability when that conduct causes harm. The idea of deterrence is not so much that an individual, having been held liable for a tort, would thereafter conduct himself better, it is rather the idea that all persons, recognizing potential tort liability, would tend to avoid conduct that could lead to tort liability.  Prosser and Keaton on Torts, 5th Edition.   Many commentators and judges have observed the need for a civil jury trial in circumstances where a person or a bank has wrongfully interfered with a lifetime or testamentary gift a donor intended an aggrieved person to receive.  As one commentator has observed, the need for the application of tort liability is especially critical when the available equitable remedies offer no deterrent at all to the tortious conduct (i.e, where the tortfeasor, after judgment, is simply returned to the same place he was prior to his tortious conduct):  “For example, assume testator-parent wishes to divide the estate equally between a son and a daughter, but the son tortuously induces the parent to make a will much more favorable to him.  Perhaps this will also name the son as executor.  Should his sister bring a will contest, the estate will pay the costs of defending the will, and we can assume the son will defend the will vigorously. Should the sister succeed in her contest, and have the will struck down, the tortfeasor will still collect his one-half share by intestacy or a prior will-the same inheritance he would have received had he never committed the tort (albeit reduced by half the cost of the defense, if he, as executor, elects to mount one).” See, Diane J. Klein, the Disappointed Heir’s Revenge, Southern Style:  Tortious Interference with Expectation of Inheritance—A Survey with Analysis of State Approaches in the Fifth and Eleventh Circuits,  55 Baylor L. Rev. 769 (2008).

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