Blogs from October, 2015



Tortious interference with an expectancy has been a recognized tort theory in Florida since 1966.  Allen v. Leybourne 190 So.2d 825 (Fla. 3d DCA 1966) (“when there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action”).    Several years later, the Third District Court of Appeals upheld the following jury instructions in tortious interference with an expectancy case: The issues for your determination on the claim of the Plaintiff are whether prior to a certain date, Decedent had a formed, fixed intention to give Plaintiff a share of his estate, and, if so, whether Defendant wrongfully and intentionally interfered with such fixed intention of Decedent, by causing him by undue influence to execute a will leaving his entire estate to Defendant, thus depriving Plaintiff of his expectancy. (paraphrased) Cooke v. Cooke 278 So.2d 683 (Fla. 3d DCA 1973).

Clearly, the courts contemplated that even if the undue influence was directed at the decedent, it was actionable by the beneficiary who was damaged by the tortious conduct.  Then along came Davison v. Feuerherd 391 So.2d 799 (Fla. 2d DCA 1980), and the Second District Court of Appeals’ adoption of the Restatement Second of Torts 774B (1979), which recognizes tortious interference with an expectancy as a valid cause of action.  The Restatement provides that “(o)ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” (emphasis added)  Id at 801.  The Davison court did not deviate from the Restatement’s focus on the wrong committed against the disappointed beneficiary rather than against the decedent.  Furthermore, the Restatement addresses remedies for the tort and provides that “[t]he normal remedy for the conduct covered by §774B is an action in tort for the loss suffered by the one deprived of the legacy or gift.”  The Florida Supreme Court subsequently incorporated the Davison opinion by reference in DeWitt v Duce 408_So.2d_216 (Fla. 1981) as authority for the position that wrongful interference with a testamentary expectancy is recognized in Florida. Scholars have noted that tortious interference with an expectancy is “not a testator-centered remedy.  As the Restatement formulation of the tort illustrates, the tort represents a fundamental and significant shift of focus away from the testator and onto the wronged would-be beneficiary.  While a will contest centers on what the testator intended, a tort suit requires a determination of the alleged tortfeasor’ s intent as well.  The focus is on the wrongful conduct of the tortfeasor vis-à-vis the beneficiary.” (emphasis added) Diane J. Klein, The Disappointed Heir’s Revenge, Southern Style:  Tortious Interference with Expectation of Inheritance, 55 Baylor L.Rev. 79, 88 (Winter 2003). In Florida, DeWitt (which incorporates Davison) and the Restatement (Second) of Torts §774B control, which means the focus is on the wrongful conduct directed at the beneficiary; however, the Second District Court of Appeals expanded on that view in dicta contained in Whalen v. Prosser 719 So.2d 2 (Fla. 2d DCA 1998), in which it compared tortious interference with an expectancy to a derivative action where the beneficiary had standing to sue the tortfeasor for the tort committed against the testator:

[i]nterference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations.  The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator.  The beneficiary is not directly defrauded or unduly influenced; the testator is.  Thus, the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference.  In a sense, the beneficiary’s action is derivative of the testator’s rights.”  Id.

The Whalen court further opined that a will contest or a trust contest may provide an “acceptable safeguard of the deceased testator’s interests.  The remedy provided by such an action, however, is not always certain to be adequate, and it may not serve as a sufficient deterrent to all persons who are tempted to use tortious means to modify an estate plan.”  Id at 6.   The Whalen court recognized the strong public policy against exploitation of the elderly in Florida and the need for a tort that enables the courts to deter future conduct.  Id at 6.  (“We recognize that exploitation of the elderly is an issue of concern in this state… [T]he courts…should continue to protect the rights of our older residents to devise property freely and without interference.”). While tortious interference with an expectancy is recognized to advance a public policy for the protection of the testator’s interest in freely disposing of his or her property, it is actionable by the disappointed beneficiary who is damaged by the conduct.  Without the availability of the tort to the disappointed beneficiary, tortfeasors could commit the perfect crime. James A. Fassold, Tortious Interference with Expectancy of Inheritance:  New Tort, New Traps, 36 Ariz. Atty 26 (January 2000).   If tortious interference with an expectancy were not a viable cause of action, then tortfeasors would have nothing to lose by making a play for the money because they would suffer no penalty for their conduct.  This tort exists to provide disappointed beneficiaries with their day in court if a traditional probate or trust action would afford little or no relief.  Id. Regardless of whether the tort is directed at the disappointed beneficiary (Davison, Restatement (Second) Torts §774B) or at the decedent/testator (Whalen), only one person has the standing to bring the claim and that person is the disappointed beneficiary. In summary, a disappointed beneficiary does not have an adequate probate remedy if no assets (or not all assets) are subject to probate and a disappointed beneficiary does not have an adequate trust remedy if no assets (or not all assets) are in the Trust.  The cause of action of tortious interference with an expectancy exists to allow a disappointed beneficiary, who cannot be made whole by a probate or trust action alone, to seek money damages from the person who caused the damage by their tortious conduct.  The normal remedy for tortious interference is an action for damages for the loss suffered by the one deprived of the gift.  Restatement §774B, Comment d.  It is a simple cause of action that says “I was supposed to get X but instead I got Y and you are to blame so pay me the difference from your own money.” Read more about tortious interference with an inheritance by clicking here.  

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