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In Illinois and Florida we’re seeing the latest development in the tortured evolution of the tort of intentional interference with an inheritance expectancy.
Most trusts and estates lawyers are aware of, if not familiar with, this tort. It’s an action that’s recognized in all but a handful of jurisdictions. While the tort was first recognized in the late 1930s in a couple of trailblazing states (Kentucky, anyone?), it is, in terms of legal precedents, a relative newcomer compared with the old standbys of direct attacks on a will or trust for lack of capacity or undue influence.
That is to say, this tort’s contours and limits are less developed in the law, causing uncertainty for practitioners. They’re left to wonder: When do I bring the tort rather than the contest, or vice versa? Should I bring both?
There are still no definitive answers. But there is a lot more grist for the mill because of Estate of Ellis, 2009 WL 3471069 (Ill. Sup. Ct. Oct. 29, 2009) and Schilling v. Herrera, 952 So.2d 1231 (Fla. App. 2007). In these cases, appellate courts a tort to proceed even after the statute of limitations for a will contest had expired—because the plaintiffs had been unaware during the will contest period of their status as interested parties.
Pastor and Parishioner
In 1964, Grace Ellis executed a will naming Shriners Hospitals for Children as the beneficiary of her estate if she died without direct descendants.
In 1999, Grace executed a new will naming as sole beneficiary James Bauman, the pastor of the church where she was a member.
Grace died in 2003 at the age of 86 with an estate worth more than $2 million. The 1999 will was admitted to probate on Oct. 29, 2003, and James was appointed as independent executor.
Shriners first became aware of its interest under the 1964 will when James filed that will with the circuit court in 2006 as part of a separate will contest brought by several of Grace’s heirs. On Aug. 8, 2006, Shriners filed a petition to contest the 1999 will.
Shriners alleged that Grace met James in 1994 and became a member of St. John’s Lutheran Church in Glenview, Ill., where he was pastor. Grace subsequently gave James powers of attorney over her health care and property, transferred title to more than $1 million of her assets to him and purchased gifts for him, including a car.
Counts I and II of Shriners’ complaint were based upon undue influence and lack of capacity.
Count III, the count at issue in the appeal, set forth a tort claim for intentional interference with an inheritance expectancy. Specifically, Count III alleged that:
(1) But for James’ interference, Shriners would have received all of Grace’s estate.
(2) With knowledge of the 1964 will, James set forth an intentional scheme to interfere with Shriners’ expectancy for his own personal benefit.
(3) James interfered with Shriners’ expectancy by abusing his position of trust, unduly influencing Grace, taking advantage of her age and diminished capacity, and failing to notify beneficiaries and interested parties after Grace’s death.
(4) But for James’ actions, Shriners would have received its bequest.
Shriners requested compensatory damages of $2 million plus punitive damages.
James filed a motion to dismiss, arguing that Shriners’ complaint was filed more than six months after the 1999 will was admitted to probate—in violation of Section 8-1 of the Illinois Probate Act (755 ILCS 5/8-1). A lower court granted his motion.
Shriners appealed only the dismissal of the tort claim under Count III.
The appellate court, following established precedent, affirmed the lower court’s decision and held that the allegations in Count III were nearly identical to those in Counts I and III—and that the legislature could not have intended “to bar a will contest as untimely after six months yet allow the same allegations to proceed in the tort arena.” 381 Ill. App.3d at 431.
Illinois High Court Decision
The issue before the Illinois Supreme Court was whether the six-month limitation applies to a tort claim. It reversed the appellate court.
Applying rules of statutory construction, Illinois’ highest court stated that applying Section 8-1 to a tort claim contradicts the statute’s clear and unambiguous language stating that the six-month limitation applies to a “petition . . . to contest the validity of a will.”
A tort action for intentional interference with an inheritance is distinct from a will contest for several reasons:
(1) The single issue in a will contest is whether the writing produced is the will of the testator. Thus, any grounds that would invalidate the will (including undue influence, incapacity, fraud or revocation) may state a cause of action.
(2) The object of a will contest is not to secure a personal judgment against an individual defendant but is a quasi in rem proceeding to set the will aside.
(3) A tort claim for intentional interference does not contest the will’s validity but rather is a personal action directed against an individual tortfeasor. The remedy, therefore, is not to set the will aside, but to issue a judgment against the individual defendant.
Although Section 8-1 does not expressly limit a tort action, the Illinois Supreme Court noted that Illinois courts have nevertheless restricted the tort in certain circumstances when a plaintiff forgoes an opportunity to file the tort claim within the six-month will contest period.
The court engaged in a lengthy discussion of Robinson, 97 Ill.2d 174 (1983), in which plaintiffs entered into a settlement agreement with an estate not to file a will contest in exchange for $125,000. More than six months later, plaintiffs filed a tort claim for intentional interference with inheritance.
In Robinson, the Illinois Supreme Court held that the tort action should have been dismissed when plaintiffs chose not to avail themselves of the will contest remedy. The court stated that, if plaintiffs were allowed to maintain their tort action, they'd be getting a “second bite of the apple,” which would defeat the exclusivity of a will contest under Section 8-1.
The Ellis court distinguished Robinson from the facts at bar because the Robinson plaintiffs could have obtained complete relief had they filed a timely will contest. In Ellis, the court could not state that a will contest was available to Shriners nor that a successful contest would have provided the relief sought by Shriners in the tort action. Indeed, Shriners was not even aware of the 1964 will until more than two years after the 1999 will had been admitted to probate. So, unlike the Robinson plaintiffs who chose to forego an opportunity to contest the will, Shriners never had such an opportunity.
The Florida Case
The Ellis court also noted a recent case that our Florida readers likely remember: Schilling v. Herrera, 952 So.2d 1231 (Fla. App. 2007).
In Schilling, the plaintiff was the decedent’s sole heir and sole beneficiary under a 1996 will. In 2003, the defendant convinced the decedent to execute a new will naming the defendant as sole beneficiary. The plaintiff did not learn of the decedent’s death until after the defendant went to close the probate estate.
A Florida appellate court allowed the tort action to proceed holding that, because the defendant’s fraud was not discovered until after probate, the plaintiff could not obtain relief in probate and could pursue a tort action for damages.
Similarly, Shriners did not have a fair opportunity to pursue a remedy in probate because it was not aware of its expectancy under the 1964 will, nor was it aware of James’ allegedly improper conduct until after the six-month will contest period had expired.
Moreover, the Ellis court notes that a will contest would not have provided sufficient relief to Shriners because it would not have extended to the alleged lifetime transfers of property made from Grace to James. In a successful will contest, Shriners would have recovered only the assets that were part of Grace’s estate at her death.Questions
Both Illinois and Florida have hit on the important element of knowledge of court proceedings. It is common for state probate statutes not to require notice of probate proceedings to be given to legatees under prior wills, leaving them with no remedy if the contest period has passed when they finally become aware of their status.
While these decisions are a step in the right direction towards providing relief for the clueless prior legatees, questions remain.
For example, should a prior legatee be precluded from bringing the tort action if he is aware of the probate proceeding? After all, the tort has certain advantages over a contest. Punitive damages may be available in egregious cases, a jury might be an option that otherwise might not be available and, as pointed out by the Ellis court, lifetime transfers could be attacked (although we must note that some sort of citation procedure is generally available to bring assets back into the estate—a fact that the Ellis court did not mention).It may take a while for this and other questions to be answered. We need the right cases and fact patterns to come along. Evolution takes time.