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Tortious Interference with an Expectancy


As the name of the cause of action indicates, tortious interference with an expectancy is a "tort" or a wrongful act that causes harm to another person, in this case economic harm, and allows for compensatory and punitive damages.  Tortious interference is a fairly new theory of tort liability that was first recognized in Florida in 1966.  Allen v. Leybourne, 190 So.2d 825 (Fla. 3d DCA 1966)

The idea behind the tort is that it protects a testator's (the person who make a Will) intent rather than protecting the beneficiary whose interest was reduced or eliminated.  In 1998, the Second District Court of Appeals in Florida held that "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."  Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998)

The plaintiff must prove the following elements to establish a claim for the Tort of Intentional Interference with Expectancy:

  1. decedent had a fixed intention to leave a portion of his or her estate to the plaintiff and
  2. strong probability existed that the decedent would have carried out his or her intention but for the wrongful acts of the defendant, whose interference must have been intentional

This is an action at law directly against the alleged tortfeasor.  A judgment for money damages can be entered against the defendant personally, which can be executed against personal assets.  Damages can include compensatory and punitive as well as imposition of constructive trust upon fraudulent gifts.  Plaintiff has a right to a jury trial.  These factors distinguish a cause of action for Tortious Interference with an Expectancy from Will and Trust Contests based upon undue influence or lack of mental capacity.  The elements of the tort are enumerated in Schilling v. Herrera, 952 So.2d 1231 (Fla. 2d DCA 2007).

This tort is available only if there is no adequate, alternative remedy in probate court!

Normal tort remedies for interference with an expectancy are money damages.  Generally, the tort is only allowed in circumstances in which no adequate, alternative remedy exists.  As these matters tend to involve Wills, the courts have taken the position that unless the Plaintiff has exhausted his remedies in probate (through a Will contest) or has no adequate, alternative remedies in probate, he cannot bring an intentional interference case.

In Florida, a plaintiff can only bring an action for tortious interference with a Will if he has no adequate remedy in probate.  The Florida Supreme Court held that "if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued." DeWitt v Duce 408_So.2d_216.  It is important to note that the Court said the claim would be barred only if 1) adequate relief was available in probate, 2) plaintiff had a fair opportunity to obtain adequate relief in probate, and 3) plaintiff failed to seek that relief.

If the plaintiff could have obtained relief being sought in probate by successfully attacking the decedent’s Will, then the plaintiff cannot maintain an action for tortious interference; however, the failure to successfully attack the Will does not preclude the plaintiff for seeking damages for loss of inheritance caused by circumstances not involving the validity of the Will (e.g. tortious interference with inter vivos trust).  Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997)

This law firm successfully litigated a tortious interference case that is often cited in this area of the law, Schilling v. Herrera, 952 So.2d 1231 (Fla. 3d DCA 2007).

If you have a tortious interference with an expectancy claim, either prosecuting or defending, please contact the attorneys at Adrian Philip Thomas, P.A. for a free consultation.

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