Tortious Interference with an Expected Inheritance

Take-Away: It is not clear if Michigan courts will recognize a common law cause of action for the tortious interference with an expected inheritance. While some earlier court decisions seem to have adopted this as a viable cause of action in Michigan, other Michigan court cases seem to avoid any official recognition of a claim for the tortious interference with an expected inheritance.

Background: Over one-half of the states have formally recognized the common law cause of action for the tortious interference with an expected inheritance. In fact, the United States Supreme Court observed that such a cause of action is “widely recognized.” Marshall v. Marshall, 547 U.S. 293, 312 (2006). While this tort claim normally applies to a frustrated devise or bequest, it can even extend to losing an intestate succession interest. Restatement (Second) of Torts, Section 744B (1979.)

Michigan Precedents: Michigan’s history with regard to the recognition of this common law tort claim is much less clear. In fact, Michigan courts seem almost reluctant to recognize this common law cause of action by a beneficiary or heir.

• 1929: Initially the Michigan Supreme Court recognized the viability of the claim for tortious interference with an inheritance  in Creek v Loski, 227 N.W. 817 (1929).
• 1996: Decades later, the Michigan Court of Appeals again recognized this common law claim and it even identified the elements that are necessary to bring a claim for the tortious interference of an expected inheritance in In re Green, No. 173335, Michigan Court of Appeals, (1996): (i) the existence of an expectancy; (ii) intentional interference with that expectancy; (iii) interference that involved conduct tortious in itself, such as fraud, duress, or undue influence; (iv) reasonable certainty that the devise or bequest to the plaintiff would have been received had the defendant not interfered; and (v) damages sustained by the plaintiff.
• 2004: However, 8 years later, the Michigan Court of Appeals held that the cause of action for the tortious interference with an expected inheritance is not recognized in Michigan. Dickshott v. Angelocci, No. 241722 Michigan Court of Appeals, WL 1366001 (June 17, 2004.).
• 2010: Most recently, when the Court of Appeals had the opportunity to address a claim for the tortious interference with an expected inheritance, it demurred, stating: “Assuming without deciding that a cause of action exists for tortious interference with an expected inheritance or gift..” The Court went on to dismiss the claim for tortious interference with an expected inheritance that had been filed, finding it redundant with separate pending claims in the probate court for undue influence of the testator. The Court noted in its footnote that the Green decision, which had recognized the cause of action, had been an unpublished decision of the Court of Appeals that was neither precedent nor binding under the rule of stare decisis. However, this appellate panel also failed to mention in its decision the Michigan Supreme Court’s Creek decision, albeit 80 years old, which had found the cause of action to be recognized at common law in Michigan. Bandener v. Bandener, No. 29033, Michigan Court of Appeals, (October 12, 2010.) 

Gomez v. Smith, No. CO89338 (California Court of Appeals, 3^rd Appellate District, September 22, 2020)

This California case, which recognizes the common law cause of action for the tortious interference with an expected inheritance,  is a good example of how, or when, such a common law claim might appropriately be asserted by a frustrated beneficiary or heir.

Facts: Frank and Louise rekindled their love late in life. Sixty years earlier Frank broke off their first engagement to serve in the Korean War. Frank’s first wife and the mother of his 4 children had died in 2012. Frank’s children from his prior marriage, including his daughter Tammy, did not approve of Frank’s 2014 marriage to Louise. Frank became ill with an abdominal aortic aneurysm. Prior to his surgery, Frank visited his attorney and told him that he wanted to be sure that Louise was taken care of if anything happened to him. After the 2016 surgery Frank was transferred to a nursing home. His attorney visited Frank in the nursing home. Frank directed his attorney to prepare a new Trust for him, with specific percentages assigned to both Louise and Frank’s children, and a life estate in the home that was held in Frank’s existing revocable trust. Frank went to hospice 4 days later. That new living Trust that Frank requested be prepared by his lawyer would provide for Louise for her lifetime permitting her to live in the home rent-free. Frank’s illness accelerated rapidly. Frank’s attorney attempted to have Frank sign the new living Trust the day after Frank was sent home under hospice care. Louise mentioned to Tammy while visiting Frank at his home: “The lawyer is coming to see your dad, and you are going to have to stay out while they are talking because they want to be talking privately.” Tammy responded to this news with: “Don’t let him sign anything.”  Frank’s attorney never had the chance to even speak with Frank because when he came to the home,  Tammy and her brother  stood in Frank’s driveway, and they prevented Frank’s attorney from even entering Frank’s home. There was a lot of yelling and profanity from Tammy in this driveway confrontation. The local sheriff was called and responded to the 911 call. Frank’s lawyer left Frank’s home but planned to return later to have him sign his Trust. Frank, who was bedridden, died the following morning, without having signed the Trust that he had hired his attorney to prepare. Frank’s existing revocable trust was thus in effect at the time of his death, and lo and behold, Tammy was the primary beneficiary under Frank’s earlier trust.

Louise sued Tammy and her brother for intentional interference with an expected inheritance. Other causes of action Louise asserted included intentional infliction of emotional distress and elder abuse.

Trial Court: Multiple claims were filed back and forth including Tammy’s cross-claim against Louise to recover trust property from Louise; that cross-claim was upheld against Louise. The important holding, however, was that the trial judge found after an extended trial with lots of testimony that Louise had prevailed in her claim against Tammy and her brother with regard to their intentional interference with Louise’s expected inheritance.

Issue on Appeal: Tammy (but not her brother) appealed the trial judge’s decision with several arguments, including: (i) Louise admitted that she did not expect to receive an inheritance from Frank; (ii) Tammy’s conduct was not tortious independent of her interference; (iii) there was no evidence that Frank had the legal capacity to sign the Trust; and (iv) the trial judge’s finding that Tammy knew Louise expected an inheritance was contradicted by the evidence.

Court of Appeals: The Court of Appeals sustained the trial judge’s decision in favor of Louise. It noted that in 2012 California formally recognized the tort of intentional interference with an expected inheritance. The Court then summarized the elements necessary to establish such a claim, along with some of its findings to uphold the trial judge’s decision:

1. The plaintiff must prove he or she had an expectancy of an inheritance. “It is not necessary to prove that one is in fact named as a beneficiary in the will or that one has been devised the particular property at issue. That requirement would defeat the purpose of the expectancy claim. It is only the expectation that one will receive some interest that gives rise to a cause of action.”

• The lawyer testified that Frank made it clear that he wanted Louise named as trustee of the Trust and that she was to have a life estate interest in the trust assets. Louise was present at that meeting between Frank and his attorney and that she understood Frank’s intention that she be taken care of during her lifetime.

2. The plaintiff must prove causation. ”This means that, as in other cases involving a recovery for loss of expectancies, there must be proof amounting to a reasonable degree certainty that the bequest or devise would have been in effect at the time of death of the testator if there had been no such interference.”

3. The plaintiff must prove intent “that the defendant had knowledge of plaintiff’s expectancy of inheritance and took deliberate action to interfere with it.”

• Tammy knew of Louise’s expectation of an inheritance when she blocked the lawyer from entering Frank’s home. Tammy even went online with regard to Louise’s ownership of Louise’s own property, “demonstrating her [Tammy’s] overzealous interest in her father’s and his new wife’s properties.“
• Apparently Frank could hear Tammy yelling profanities in the driveway, implying she knew the purpose of the lawyer’s visit. Upon hearing the yelling in the driveway, Frank expressed anger to a third party witness with regard to his daughter’s behavior.
• The  lawyer also testified that during Tammy’s outburst in the driveway she screamed “It wasn’t [Frank’s] decision to make, it was her(deceased) mother’s house, and that [Frank] cannot change the trust.” At the time, the home was titled in Frank’s first joint trust with his deceased wife, but the trust was revocable and subject to modification by Frank as the surviving settlor.

4. The plaintiff must prove that the interference was conducted by independent tortious means, meaning “the underlying conduct must be wrong for some reason other than the fact of the interference.”

• Tammy held her father’s durable power of attorney as his agent. The trial judge found that she had breached her fiduciary duty to him. “The trial court found the interference to be tortious because Tammy breached her fiduciary duty to Frank by precluding him from meeting with his attorney to finalize his wishes regarding the distribution of his property, when Tammy acted in her own self-interest. This finding meets the’ independently tortious means’ requirement, which is satisfied ‘when interference resulting in injury to another is wrongful by some measure beyond the fact of  the interference itself. Defendant’s liability may arise from improper motives or from the use of improper means.”

5. The plaintiff must prove that he or she was damaged by the defendant’s interference. Louise was not a beneficiary of the trust that Frank died had in place, so she received nothing under that trust. As noted, Tammy was the principal beneficiary of Frank’s trust that became irrevocable at the time of his death. Tammy was to be replaced as principal trust beneficiary with the Trust that the lawyer had prepared.
6. The defendant must direct the independently tortious conduct at someone other than the plaintiff. Tammy prevented Frank’s attorney from presenting the Trust for Frank’s execution, which then coincidently preserved Tammy’s right to benefit under Frank’s trust that was to be replaced by his new Trust.

Conclusion: Over half of the states have recognized some form of the common law cause of action for the tortious interference with an expected inheritance. It is difficult to say if Michigan is in that majority in light of the inconsistent Michigan court decisions that address the topic. Maybe claims of fraud and undue influence are sufficient to protect those individuals who expect to receive an inheritance. Then again, maybe not. It would be nice if we had a clear decision from the Michigan Supreme Court that told us if this cause of action is available to individuals who are deprived of an inheritance due to the interference and offensive behavior of others. I guess we will just have to wait another 80 years!