Outside of the probate process, is there a way to seek redress in a situation where an intended beneficiary loses an inheritance because of the acts of a third party? For instance, what happens when a relative induces Dad to revoke his Will, leaving his son with only an intestate share of Dad’s estate, rather than the much larger inheritance he would have enjoyed had the Will remained in effect?

There’s a trend toward recognizing a claim for tortious interference with inheritance in situations like this, but the requirements for making a valid claim are pretty restrictive.

• The plaintiff must show that an actual expectancy of an inheritance existed sufficient to warrant the court’s protection.

• The expectancy may be impeded by conduct altering the execution, alteration or revocation of a Will.

• The plaintiff must prove that the defendant’s interference with the expectancy was intentional and tortious.

• If the interference was only negligent and not intentional, the plaintiff does not have a valid claim.

• The plaintiff is required to show by a “high degree of probability” that, but for the defendant’s intentional act, the plaintiff would have received the expected inheritance.

• The plaintiff has to show that the defendant’s tortious conduct caused injury. Ordinarily, the measure of damages in a tortious interference claim is the value of the property that plaintiff would have inherited absent the tort.

What about the timing of a claim? In some states, a plaintiff is permitted under certain circumstances to make a claim during the testator’s lifetime, while in others, the plaintiff must not only wait until after the testator’s death, but also exhaust any remedies available through the probate process before making a tort claim. Nationwide, there’s a growing trend toward recognizing the tort, but a number of states, including Arkansas and Tennessee, have declined to do so.

What do you think? Should states recognize tortious interference with an inheritance?

Stephen C. Hartnett, J.D., LL.M
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
(800) 846-1555
www.aaepa.com