Tortious Interference with a Bequest or Inheritance

Take-Away: Apparently Michigan does not (yet, at least) formally recognize the cause of action for a tortious interference with an inheritance, while about half the states do recognize this common law cause of action. Those states that refuse to recognize this tort action seem to believe that a probate judge has plenty of remedies available to address a situation where actions are taken to deprive an individual of an inheritance or bequest, which is usually takes the form of undue influence over a testator or settlor.

Background: A separate tort cause of action sometimes surfaces in litigation when a Will is offered to probate, or a settlor’s trust becomes irrevocable, a claim apart from litigation that is associated with enforcing the terms of the Will or trust.

Tortious Interference with a Contract: Michigan recognizes the common law cause of action for a tortious interference with an existing contractual relationship. The elements that must be proven to support a claim of tortious inference of a contract include: (i) there exists a valid business relationship or expectancy of the plaintiff; (ii) the defendant has knowledge of that existing relationship or expectancy; (iii) there was an intentional interference by the defendant to induce or cause a breach or termination of the relationship or expectancy; and (iv) some resultant damage to the plaintiff. Bertrand v. Alan Ford, Inc. 449 Mich. 606 (1995); Mahrle v. Danke, 216 Mich App. 343, 350 (1996). Michigan courts have also found that the relationship or expectancy is not dependent upon the existence of an actual or formal contract instrument. Winienko v. Valenti, 203 Mich. App 411 (1994).
Tortious Interference with a Will or Trust: While there are multiple Michigan court decisions that recognize and address a civil damage claim for a tortious interference with a business relationship, contract or expectancy, it is difficult to find any Michigan court decisions that extend this common law cause of action to an intentional interference with a bequest or devise under a Will or trust, despite the fact that such a claim for tortious interference with an inheritance is recognized in Restatement (Second) of Torts, Section 774B (1979) and an inheritance is yet one more type of an economic
Michigan Case: The one unpublished (i.e. it is not binding precedent) decision of a Michigan Court to address the claim of a tortious interference with an inheritance ultimately dismissed that claim. In re Estate of Adolph Zadra, Michigan Court of Appeals, No. 232712 (August 23, 2002.) In response to the probate judge’s dismissal of a claim for intentional interference with an inheritance, the Court of Appeals upheld that decision and then went on to address the public policy of Michigan on this remedy recognized by other states:
“Although petitioners claim that they had an expectancy they point to no authority which would suggest that such a claim is applicable to the circumstances presented herein, involving a devise or bequest of a fiduciary’s failure to perform his duty under a will or trust….Indeed, as a matter of public policy, the characterization of a devise or a bequest in a will or trust as a ‘business transaction’ in the context of a claim for tortious interference with a business relationship should be discouraged. Although petitioners may have sought some economic advantage in waiting out the death of the decedent and their mother, their expectation cannot be fairly be termed a business relationship with the decedent in the sense that they were contracting for remuneration through a quid pro quo arrangement.”
Perhaps the Zadra decision can be distinguished because of the fiduciary’s involvement and that fiduciary’s failure to administer the decedent’s Will according to its terms. But it appears that Michigan’s current public policy will not be extended to recognize the common law tort of intentional interference with an inheritance by the refusal to extend the tort for interfering with a contract, or economic expectancy, to Wills and trusts- which also reflect an economic expectancy held by the named beneficiaries.

Recent Case: The issue of an enforceable claim at common law for the intentional interference of an inheritance was at issue in the recent Iowa Court of Appeals decision, In the Matter of Estate of Lois B. Erickson, Deceased, No 17-0430 (July 18, 2018.)

Facts: In that case the mother signed a 2010 Will in which she left her estate to her three children in shares of equal value. In 2011 one of her sons spoke with the mother’s lawyer and indicated that she wanted to change her Will to leave her estate to that one son. The mother died in 2015. The dispute was over the validity of the 2011 Will, which effectively disinherited two children, vs. the 2010 Will where all three children shared equally in their mother’s estate.
Courts: Invalidating the 2011 Will, the probate court, and the Iowa Court of Appeals, both found that one son had used undue influence over his mother. The son had spoken primarily with the drafting attorney, at a time when his mother was diagnosed with Alzheimer’s and a guardianship proceeding was pending. In fact, the 2011 Will was signed by the mother just a few days before the probate court appointed a guardian-conservator for the mother on a petition that had been filed by the other two children. The drafting attorney testified that the one son who approached him about writing the new Will was ‘driving the bus’ when it came to his mother’s 2011 Will. Other facts that suggested undue influence was the one son’s claim that his brother was stealing from his mother, thus prompting her to sign her 2011 Will, a claim that was later disproved. In addition, the one son prevented his sister from taking their mother to community events (apparently in an effort to isolate her from others.)
Alzheimer’s: The Court observed that because the mother was afflicted with Alzheimer’s, that condition resulted in her lack of testamentary capacity and caused her to be more susceptible to undue influence.
Proving Tortious Interference with Inheritance: The two victimized children were able to demonstrate that their brother had acted with tortious intent. They proved the following elements of tortious interference with their inheritance: (i) the plaintiffs [children] had an expectancy to receive an inheritance under the 2010 Will which their brother interfered with; (ii) that interference by their brother that induced the 2011 Will was tortious; (iii) there was a reasonable certainty that, but for the one son’s tortious interference that induced their mother to sign the 2011 Will, the other two children’s expectancy of receiving an inheritance under their mother’s 2010 Will would have been fulfilled; and (iv) the two children were damaged and/or injured as a result of their brother’s actions to negate the 2010 Will where the residuary bequest to them was located. Because of the undue influence by the one son over his mother that undue influence which was rectified by not recognizing her 2011 Will.
Damages: One big difference between merely finding undue influence that induced the decedent’s execution of a new Will, versus supporting a civil claim of tortious interference with an inheritance, is that the Iowa probate court (and the Court of Appeals) also entered a damage award against the one son who unduly influenced his mother in her weakened condition. This also included a court order that the one son pay the personal representative’s legal fees in the dispute over which Will to admit to probate, as opposed to letting those legal fees be paid from the probate estate that the innocent two children would ultimately participate in inheriting as residuary estate beneficiaries.

A Couple of Observations: In reading this decision from Iowa a couple of thoughts come to mind.

Attorney: I wonder what the drafting attorney was thinking (or more accurately not thinking) when he prepared the 2011 Will having just prepare the 2010 Will. Most attorneys are pretty adept at figuring out if their client wants to amend a Will or trust, and what role the child is playing in their parent’s estate plan. The fact that the lawyer testified that the one son was ‘driving the bus’ with regard to the lawyer’s client’s 2011 Will should have made him even more cautious than is normally the case when children bring their parent to an attorney’s office for estate planning. I still wonder if the drafting attorney might have faced some liability exposure if the two victimized children had decided to turn on him.
Alzheimer’s: I am also a bit troubled by the Iowa Court of Appeals ‘blanket statement’ that everyone who is afflicted with Alzheimer’s lacks testamentary capacity. Alzheimer’s is a progressive disease. Just because there is that unfortunate diagnosis does not mean, ergo, testamentary capacity has completely disappeared. Later stages of the disease, ‘yes’ testamentary capacity is probably gone, but early stages of the diagnosis do not mean that the individual cannot sign legal documents- everyone just has to be more cautious to determine intent and volition.

Conclusion: I am not sure if it is a good thing, or a bad thing, that Michigan’s public policy does not recognized the common law cause of action for tortious interference with an inheritance. If the situs or governing law of a trust is changed to a jurisdiction for administrative or tax reasons, it is possible that such a change might also bring along with it the availability of this common law tort action. Something to at least mull over if a change in trust situs is sought.