Torts and Estates: Remedying Wrongful Interference with Inheritance

Article excerpt

INTRODUCTION
I.   FREEDOM OF DISPOSITION AND THE LAW OF INHERITANCE
     A. Freedom of Disposition
     B. Safeguarding Freedom of Disposition Through Will Contests and
        Restitution Actions
         1. Will contests
            a. Inferences, presumptions, and burden shifting
            b. Other specialized procedural rules
         2. Restitution by way of constructive trust
            a. Remedying wrongful interference with will formation or
               revocation
            b. Remedying "extrinsic fraud"
            c. The capaciousness of restitution
II.  THE EMERGENCE OF THE INTERFERENCE-WITH-INHERITANCE TORT
     A. Nineteenth and Early Twentieth Century Doctrine
     B. The First and Second Restatements of Torts
     C. Recognition in Contemporary Law
III. REDUNDANCY AND CONFLICT WITH INHERITANCE LAW
     A. Bohannon and the Confused Origins of the Tort
     B. An Unnecessary Tort: The Forgetting of Restitution
         1. Interference with a nonprobate transfer
         2. Fraud in connection with a probate proceeding
         3. Inter vivos transfer that depletes the estate
     C. Reform Without Reason and "Adequacy of Probate"
         1. Rivaling the will contest
         2. Unprincipled application of the "adequacy of probate" rule
 IV. THE INCONGRUITY OF INTERFERENCE WITH INHERITANCE AS A TORT
     A. Interference with Inheritance as a Derivative Claim
     B. Interference with Inheritance as a Primary Claim
         1. Multiple primary claims versus derivative claims
         2. The implausibility of a right in the expectant beneficiary
         3. The special case of malicious interference
     C. The Realist Conception of Tort: Law and Equity Revisited
         1. The imperialism of Realist tort
         2. Law, equity, and the inapt analogy to legal malpractice
CONCLUSION

INTRODUCTION

Spurred by an innovative Restatement provision (1) and two U.S. Supreme Court decisions in a case involving former Playboy Playmate Anna Nicole Smith, (2) courts, lawyers, and legal scholars are increasingly inclined to recognize a tort cause of action for wrongful interference with an expected inheritance. An extension of actions for interference with contract and commercial expectancies, the interference-with-inheritance tort subjects to liability one who, by tortious means, intentionally prevents another from receiving an inheritance. (3)

For example, suppose that Goneril fraudulently induces Lear to execute a new will in Goneril's favor and to revoke Lear's prior will in favor of Cordelia. (4) Under section 774B of the Second Restatement of Torts and case law in about twenty states, (5) Cordelia can sue Goneril for tortious interference with Cordelia's expected inheritance, have the claim tried before a jury, and recover compensatory damages (including damages for pain and suffering) and possibly punitive damages. In some states, Cordelia can commence her tort suit prior to Lear's death even though Lear could thereafter change his will yet again. (6)

Bucking the current trend, we argue that the interference-with-inheritance tort should be repudiated. Because courts are increasingly being asked to recognize the tort, (7) because the American Law Institute (ALI) will revisit the instigating Restatement provision in the next few years, (8) and because we are in the midst of a massive intergenerational transfer of wealth, (9) the soundness of the tort is a pressing policy issue in need of close scrutiny.

The tort is problematic because it is both redundant and in conflict with the law of inheritance, (10) The organizing principle of American inheritance law is the donor's right to freedom of disposition. (11) A prospective beneficiary's expectancy of a future inheritance is entirely dependent on the donor's exercise of this right in favor of the beneficiary. Inheritance law thus does not afford a prospective beneficiary direct recourse for harm suffered as a consequence of a third party's interference with the beneficiary's expected inheritance. …