When is “failure to exhaust probate remedies” properly asserted as an affirmative defense to a tortious interference with an expectancy action? The answer is almost never. (Click here for information about the tort action.) The Dewitt v. Duce, 408_So.2d_216, (Fla. 1981), holding can be paraphrased as follows: The State of Florida has an interest in the orderly succession of property and therefore prefers that a dispute concerning a decedent’s property be conducted in probate shortly after the decedent’s death rather than in a civil action years later. Therefore, if you can achieve exactly the same result with a Will contest that you could with a tortious interference law suit, then you must chose the Will contest. If you do not chose the Will contest, then you will be unable to sue for tortious interference later for one simple reason: “The probate of a Will in Florida is conclusive of its due […]