Atlanta Bar Association, Estate Planning Section Breakfast, August 1999.

General Observations on the Future of Estate Litigation

I. Introduction

It obviously is well-established in Georgia law that parties to a contract have a right of action against one who has procured a breach or termination of that contract by the other party. The theory behind this doctrine is that the right to perform a contract and the right to reap the benefits resulting from the performance of such contract are property rights which are entitled to protection under the law. Therefore, you can bring a tort action for any injuries suffered as a result of the interference with such contract.

But what about interference with non-contractual relationships?

As it turns out, once the tort of intentional interference with contractual relations gained acceptance, courts across the country began to recognize the tort of intentional interference with inheritance or expectancy. The courts that have considered the point have reasoned that the law should afford as much protection to noncommercial expectancies as it does to commercial ones. And in fact, this cause of action seems to now be well-established in most states, notwithstanding a rather confusing history. As our own Supreme Court so eloquently put it back in 1915, “[n]ot only does the failure to permit such a cause of action give unnecessary protection to malice, but it also invites the courts to close their eyes to cause and effect and to a large segment of the realities of human affairs.”

Restatement (Second) of Torts, ch. 37A, §774B, has probably summarized this type of claim best:

One who, by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received, is subject to liability to the other for loss of the inheritance or gift.

Comment b to this section defines inheritance as including any devise or bequest that would otherwise have been made under a testamentary instrument or any property that would have passed to the plaintiff by intestate succession. Comment b goes on to state:

[That] the rule stated here applies when a testator has been induced by tortious means to make his will or not to make it; and applies also when he has been induced to change or revoke his will or not to change or revoke it. It applies also when a will is forged, altered or suppressed.

Since Mitchell, more and more states have approved the tort, and plaintiffs have been creative in expanding the situations in which it applies.

In a broad sense, circumstances which give rise to claims of interference with non-contractual rights or expectancies include:

1. interference with expectancies under a will or trust;
2. interference with expected gifts;
3. interference with the rights to insurance proceeds and retirement plans;
4. interference with title to property (i.e. causing property or accounts to be retitled as either joint tenancy with right of survivorship (JTROS) or payment on death (POD) to the wrongdoer); and
5. wrongfully causing someone to make inter vivos transfers.

For ease of discussion, I will primarily address those situations which involve or relate to third party interference with another’s inheritance or right to receive property on someone’s death.

One of the biggest problems we find in the estate setting is that while Probate courts can strike from a will that which is the result of fraud (or disallow an entire will) it cannot bring into being a will or codicil which a decedent was prevented from making nor can it recover for the estate property which was fraudulently conveyed by a decedent prior to his death. These, and other related problems have led to a hodgepodge of rulings across the country as courts struggle with a developing body of law that is really still in its infancy despite its turn of the century roots.

II. Early History

The theory behind claims for tortious interference with expectancy seems to have originated in cases such as our own 1915 case of Mitchell v. Langley, 85 S.E. 1050 (Ga. 1915) and Lewis v. Corbin, 195 Mass. 520, 81 N.E. 248 (1907) (discussed infra). Both cases are important because of how often other jurisdictions cite them as the basis for tortious interference claims in those states.

In Mitchell, the plaintiff alleged that her sister had fraudulently induced their brother to change the beneficiary of his life insurance policy from the plaintiff to the sister. The Georgia Supreme Court affirmed a judgment for damages in favor of the plaintiff, finding that although a named beneficiary may not have such a vested interest in an insurance policy as to prevent the insured from changing the beneficiary, a beneficiary who has been so named is not an entire stranger to the contract. As such, the named beneficiary has an interest which, if a third party fraudulently induces the insured to change the certificate and appoint such person as a new beneficiary, then, a claim would lie for damages by the injured party against the person so acting.. Thus, where the change is procured by fraud upon the insured, the right of the original appointee should not be impaired in a contest between rival claimants to the policy proceeds and a claim by the injured party for damages would lie. The court stated that:

The fact that this status has not ripened into a vested and irrevocable ownership of the beneficial interest, and that the member has a right to change it, does not authorize a third party to maliciously and fraudulently destroy the status and thus prevent the interest or expectancy of the beneficiary from ripening so that he will receive the fund. The reserved right of the member is one thing; the malicious and fraudulent interposition of a third party to destroy the status is another.

As we’ll see, the reason why this is so important is that the Georgia courts, in one stroke of the pen, disposed of the biggest hurdle facing suits over rights which haven’t vested yet. However, to the court’s credit, they did not stop there. Unlike many courts today which seem to go out of their way to limit their rulings to the facts of that case, the Mitchell court anticipated how their ruling on an insurance case might be applied in other settings as well, pointing out that “. . . where a will has been made leaving a devise, a third person can fraudulently and maliciously cause the testator to revoke the devise and thus cause a loss to the devisee, without any redress on the part of the latter. They then questioned whether or not a man would have the right to receive gifts or insurance or the like if they were in the process of being perfected and would have come to him but for a malicious and fraudulent interference:

where an intended donor or testator or member of a beneficial society had actually taken steps toward perfecting the gift or devise so that if left alone the right of the donee, devisee or beneficiary will cease to be an inchoate and become perfect, they were of the opinion that there is such a status that an action would lie if it were maliciously and fraudulently destroyed, and the benefit diverted to the person so acting, thus occasioning the loss to the person who would have received it.

The court concluded that the “bare possibility” of such receipt would not fall within the reasoning of their position. Unfortunately, they did not give us any further guidance on what constitutes “bare possibility.”

So there you have it. The entire body of Georgia law to date on this important subject. At first glance it would seem that the viability of this type of claim was firmly established in Georgia in 1915. Yet, there are almost no other instances where the Georgia appellate courts have taken up the issue again in any meaningful way. Thus we are left with Mitchell, and a myriad of cases from other jurisdictions on the various sub-issues related to claims for tortious interference with expectancies and a piecemeal approach to trying to figure out how Georgia courts might deal with the same issues when finally faced with them.

This article will first discuss the elements that constitute a viable claim for tortious interference, since I believe these have been fairly clearly (and consistently) enunciated in other jurisdictions.

After that, I will address the question of whether or not a will contest in probate court either precludes such claim or at a minimum serves as a prerequisite for maintenance of a separate action for tort damages. As we will see, some states have held that in order to maintain an action for interference with an expectancy, the aggrieved party must either attempt to pursue a remedy in probate court or make a showing that a complete remedy is not possible through such proceedings.

Finally, I will briefly address the idea of “living will contests” and tort suits brought prior to the testator’s death.

III. Elements of Tortious Interference With Expected Inheritance

Most of the states which have addressed the issue of tortious interference have clearly enunciated the necessary elements of proof, and moreover, have done so in a fairly uniform manner. In particular, courts have generally held that the plaintiff would have to prove:

1. the existence of an expectancy;
2. that the defendant intentionally interfered with the expectancy;
3. that the interference involved tortious conduct, such as fraud, deceit, duress, defamation, or undue influence;
4. reasonable certainty that the devise would have been received by the potential devisee but for the defendant’s interference; and
5. damages.

I will address each of these elements one at a time.

1. Existence Of An Expectancy

In order to satisfy the first element of the tort of intentional interference, the plaintiff obviously must show that an expectancy existed sufficient to warrant the court’s protection. This task is obviously made more difficult by the fact that an heir generally has no interest in an inheritance until the testator dies.

However, courts are in general agreement that it is the expectation of receiving a future benefit by way of inheritance, and not the certainty thereof, which the courts seek to protect. In other words, what is actionable is conduct which deprives a would-be legatee or heir of the possibility that the decedent would not have changed his mind but for the defendant’s act of interference.

Particular Kinds Of Interference. When we talk about the “existence of an expectancy,” we are really talking about three basic categories of interference:

1. Interference with the execution, alteration or revocation of a will;
2. Suppression, destruction, or loss of a will; and
3. Deprivation of an inheritance by inducing some sort of inter vivos transfer or payment on death (POD) event.

In the cases involving allegations of interference with the execution, alteration or revocation of a will, a number of courts, including the Georgia courts, have recognized that a cause of action would lie, (although complete relief may be available in probate court through the typical will contest. More on that later.)

Similarly, in the cases involving allegations of suppression or destruction of a will, courts have generally held that a cause of action will lie.

In situations where a plaintiff was deprived of an inheritance because the defendant induced a decedent, while living, to transfer property to the defendant, the courts seem to be somewhat split, but the trend is to allow a claim to lie in this situation as well.

a. Interference with the Execution, Alteration or Revocation of a Will.

Generally, courts around the country recognize a cause of action for damages for the wrongful causing or preventing of the execution, alteration or revocation of a will or codicil which results in the plaintiff being deprived of an inheritance. Again while Georgia has not ruled on this issue specifically, the Mitchell v. Langley court alluded to its viability in Georgia and most jurisdictions that have dealt with the issue concur. In Lewis v. Corbin, a 1907 Massachusetts case, (like Mitchell, the other granddaddy of the tortious interference world) the court sustained an action in tort where the plaintiff alleged that the defendant deprived the plaintiff of a legacy through fraud by inducing a testator to execute a codicil with only one witness in a state where two witnesses were required for a valid codicil. Here the court stressed that the fraudulent conduct of misleading a testator to believe that a codicil was valid with only one attesting witness was a wrong perpetrated on the plaintiff as well as on the testator, and the recovery of damages were entirely outside of anything that the probate court had jurisdiction to remedy.

Other states have fallen predictably in line. In Illinois, courts implicitly sanctioned as a viable tort claim wrongful prevention of the execution of a codicil was. In West Virginia, the courts sustained a tortious interference claim by a sister against a brother who wrote their father’s will with dispositive provisions that were contrary to the father’s wishes. Similarly, the Iowa courts have found that wrongfully causing the revocation of a prior will and the execution of a new will was actionable.

Closer to home, the North Carolina courts have sanctioned the right of recovery for the malicious and wrongful interference with the making of a will where defendants, through false representations, prevailed on the plaintiff’s grandfather to change a definite plan he had made to leave the plaintiff a large share of his estate. There the court found that plaintiff’s grandfather would have carried out his purpose but for the wrongful acts of the defendants.

That’s not to say that there are not aberrations. One court in Ohio found that the husband of the deceased did not interfere with any legal right of the deceased’s sister in preventing his wife from making a will providing a legacy for her sister and thus affirmed the dismissal of the sister’s action for tortious interference damages.

Intestacy as Basis for Claim. Can a plaintiff base a claim for tortious interference simply on intestacy statutes? In other words, should the mere fact that someone might inherit from a decedent if that decedent had died intestate necessarily create an expectancy which rises to the level of a protectable interest, if a third party interferes with that expectancy?

Most of the jurisdictions which have addressed the issue seem to hold, or at least indicate, that plaintiffs may rely on the statutory intestacy scheme to support a claim for intentional interference with inheritance. For example, the Illinois appellate court held that “the mere interest arising by virtue of the statutory distribution scheme . . . should . . . receive protection.” The Robinson court did go on to note that even if the intestacy statutes are allowed to be used to demonstrate the existence of an expectancy, the plaintiff still must allege either: (i) that the decedent’s expressed intent was to die intestate; or (ii) that other facts show the decedent would have died intestate absent the tortfeasor’s interference, in order to satisfy the causation element of the tort.

It seems logical to conclude that the intestacy statutes provide tangible evidence of how a decedent’s estate would have been distributed but for the tortious conduct. However, unlike an actual writing, they do not affirmatively demonstrate decedent’s intent, which some states seem to require. Thus, if the decedent would have made a will regardless of the defendant’s fraud, then the causation element might not be satisfied.

The reality though is that it makes little sense to allow a will procured through fraud to stand simply because there existed no previous will or other writing expressing testator’s intent. If the plaintiff would have inherited through intestacy but for a tortfeasor’s intervention, it seems as if the will should be thrown out or an injustice is allowed to prevail.

b. Suppression, Spoliation, Destruction or Loss of A Will

One set of circumstances where probate courts are unlikely to provide complete relief are the lost, destroyed, or suppressed will cases. Remember though that Georgia law will allow you to probate a copy of a will, even an unsigned will, when the original has been “lost.” However, in such situations, the hurdles are sometimes high and often insurmountable, assuming you can even find a copy.

In an old North Carolina case, a plaintiff alleged that defendants removed from the deceased’s will a part which had provided for a legacy to her and that a previous will without the legacy to her was admitted to probate. In an action by the plaintiff for tort involving alleged destruction of part of a will, the North Carolina appellate court held that, on the principal of justice that there is no wrong without a remedy, the plaintiff was entitled to maintain the cause of action. The court pointed out that plaintiff could not really probate the will under North Carolina law because the evidence available to her would not prove its entire contents.

Similarly, in Ohio, an action for damages involving the alleged suppression of a will and the forging and probating of a spurious will was affirmed in favor of the plaintiff. In Petitt, the plaintiff was the testator’s grandnephew, and alleged that defendants, (children of the testator), fraudulently suppressed the testator’s last will under which the grandnephew was a devisee of a hotel. The grandnephew also alleged that he did not discover the writing admitted to probate was a forgery until 20 years after the will was probated.

More recently, an Illinois court allowed a decedent’s stepdaughter to recover damages from her stepsisters based on their tortious interference with an expectancy from her stepfather. In Nemeth, the plaintiff alleged that she was a devisee under two prior wills of the decedent, which devise was the result of an oral agreement between her mother and the decedent to make identical wills, and that after the decedent’s death defendants claimed that they could not locate the original of any of his wills and that his entire estate passed to the defendant stepsisters (the decedent’s daughters) by intestacy.

In the end, I suspect that once faced with the issue, Georgia courts will find what other states have generally concluded: that suppression type cases can be maintained but that each is going to turn on the level of evidence that a plaintiff can bring to support it. The question generally is not one of whether the jurisdiction actually sanctions such tort, but whether or not the plaintiff can gather enough evidence to make out his case.

c. Deprivation Of Inheritance By Inducing Inter Vivos Transfer

Finally, we come to what I believe is becoming the most fertile area for tortious interference claims: inter vivos transfers. I base this not only on my review of the opinions being handed down in recent years across the country, but also on trends I see in my own practice. The majority of the tortious interference-type cases with which we have dealt in the last few years have involved some form of wrongful inter vivos transfer, either outright or through conversion of property titles to joint tenancies or “pay on death” accounts.

Numerous jurisdictions have found what appears to make logical sense — that depriving someone of an inheritance by inducing a testator to make inter vivos transfers, thereby reducing the size of the decedent’s estate, gives rise to an actionable tort. Usually, it seems we are talking about an elderly single parent who is either incompetent or at least largely dependent on the assistance of others due to diminished capacity.

In these situations, there is often no viable will contest remedy since, in many of the cases, the will has not been altered! For example, it may still leave testator’s property equally to the children. Unfortunately, by the time testator dies, she’s left with no estate to pass under her will.

A quick survey of the types of cases being dealt with in other jurisdictions should give us some sense of what we can probably expect in Georgia.

In Florida, a plaintiff alleged that her mother had prepared a will leaving all her assets to her son and daughter in equal shares. The daughter managed the decedent’s property until she became ill, at which point the son took over and transferred all of his mother’s assets to himself, or to himself and decedent jointly. After the decedent’s death, the son refused to probate his mother’s will claiming that he already owned all of her assets. The Florida appellate court held that the alleged facts would support a claim by the sister for wrongful interference with testamentary expectancy.

The court in Maine has held that plaintiffs stated a valid cause of action where they alleged that the defendants deprived them of their inheritance by inducing their father to transfer property to the defendants four days before his death. In Cyr, testator died leaving a will which divided his estate equally among his seven children. After his death, four of the children learned that one of their siblings and her husband had convinced the testator to convey property to them while the testator was mentally and physically infirm.

These types of cases, more than any of the others in this area of law, typify the tortious interference with inheritance claim. Almost without exception, the plaintiffs could not get complete relief through a will contest, since, regardless of whether or not a will is set aside (and often there is no will to set aside) the property has been removed from the estate and is not disposed of by will.

Thus, where a will leaves everything equally to two siblings, but where one sibling induced a parent to transfer the parents’ property before his death to that sibling, a claim should lie for tortious interference, not as to the inducement to create or change a will, but rather with regard to inducement to transfer property and take it outside the scope of the will’s provisions In all likelihood, Georgia courts will reach the same conclusion once presented with this issue for determination.

2. Intentional Interference With Expectancy And Tortious Conduct

To satisfy the second and third elements of the tort, a plaintiff must prove: (1) that a defendant intentionally interfered with the expectancy; and (2) that such interference involved conduct which is, in and of itself tortious, such as fraud, deceit, duress, or undue influence, defamation, abuse of fiduciary duty, forgery, or alteration or suppression of a will.

So what actions will constitute intentional interference? A couple of examples will help illustrate:

• In one recent case, a wife on her death bed repeatedly asked her husband to help her have her will witnessed and signed, and he continuously “neglected” to do so. Eventually the husband complied, but later cut off the names of the witnesses and suggested that they keep quiet about the will. The court imposed a constructive trust over the funds which Plaintiff should have received.
• In another case, a testator was about to sign a will leaving all her property to the plaintiff but Defendants prevented her from signing it by physical force or by “creating a disturbance” and the testator died shortly thereafter not having signed the will. Again, a constructive trust was imposed.

It should go without saying that liability for tortious interference with inheritance is limited to those who have actually interfered by means that are independently tortious in character. Thus, merely making statements to the testator, justifiable and in good faith, are not actionable notwithstanding that the testator may change his will based on such statements. In fact, one who by legitimate means merely persuades a person to disinherit a child and leave the estate to the persuader instead is not liable to that child. Such means must first rise to the level of tortious behavior before an action for damages will lie.

3. Causation

The fourth element of this tort involves proving that there was a reasonable certainty that the expectancy would have been realized but for the interference of the defendant. In other words, there must be proof amounting to a reasonable degree of certainty that the bequest or devise probably would have been in effect at the time of the testator’s death (or that the gift would have been made inter vivos) if there had not been any interference or tortious acts on the part of the defendant. According to the Restatement of Torts: If there is a reasonable certainty established by proof of a high degree of probability that the testator would have made a particular legacy, or would not have changed it, if he had not been persuaded by the tortious conduct of the defendant, and there is no evidence to the contrary, the proof may be sufficient that the inheritance would otherwise have been received.

The Restatement goes on to note that the certainty of the bequest or devise can sometimes be shown with complete confidence, as when a will is suppressed or altered after the death or incompetence of the testator. However, in other situations such as when a will is made, revoked or changed during his lifetime, complete certainty is impossible, and is not required. Rather, the Restatement indicated that a court could appropriately consider whether the defendant’s tortious conduct made it impossible for the plaintiff to prove the inheritance with certainty.

4. Damages

The final element of the tort is Damages. Plaintiffs in tortious interference cases typically seek damages as the value of the property that would have been received or lost expectation had the tortious conduct not occurred. In additions, other damages typically include attorney’s fees and punitive damages which may also be available to plaintiffs.

However, as discussed, infra, some courts will not consider the possibility of plaintiffs recovering punitive damages in determining whether or not a will contest provides adequate relief so as to preclude a claim for tortious interference. In those cases, an odd dichotomy is created. Since punitive damages are typically allowed in tort cases, if a plaintiff can establish that he cannot otherwise receive adequate relief in the probate court independent of punitive damages, then he gets a bonus. The tort claim he would be allowed to bring in superior court would provide him with those punitive damage award options. On the other hand, if he can get complete relief in probate court, he may be precluded from punitive damages.

Another element of damage could include the cost of a commission paid to a temporary administrator appointed while the plaintiff’s will contest was pending. Courts have also allowed plaintiffs to seek other types of consequential damages, including damages for past or future emotional distress resulting from the interference. The court in Carleton made it clear though that an emotional distress claim could only be brought against the tortfeasor, not the estate.

There is even case law support for a plaintiff who successfully contests a will, to be able to bring a subsequent tort action for intentional interference with inheritance to recover the damages for legal fees or loss of time at work resulting from the will contest.

IV. Is An Action For Tortious Interference Precluded By Remedy Afforded By Will Contest?

One frequently cited reason for allowing recovery for damages suffered due to a third party’s tortious interference is the legal theory that every wrong should have a remedy. However, it is fairly obvious that in many cases the underlying facts of the tort are similar, if not identical to the facts giving rise to a will contest. Therefore, one question that has arisen repeatedly involves the issue of whether or not a plaintiff’s action for tortious interference with an expectancy is precluded by the remedy afforded by a will contest. In making such determination, there are really a number of issues being addressed.

1. The first is whether or not there exists any probate court remedy.
2. The second is whether or not a litigant must first bring a will contest or otherwise exhaust his or her probate remedies before, or as a prerequisite to bringing an action for tortious interference.
3. The third is whether a complete or adequate remedy is available in probate court or whether a tort claim is still necessary in order for the aggrieved party to obtain complete relief. In other words, is it possible to litigate all issues in probate court, and if not, does the probate remedy preclude a later tort claim.
4. The fourth is what happens when no relief is possible in probate court or that probate court has no jurisdiction.

It seems that when a probate proceeding has the potential for fully redressing any damages suffered by the plaintiff, some courts require that the probate court proceeding be completed before a tort proceeding can be brought. The theory (in some states) is that many will contests provide plaintiff with the ability to achieve complete relief rendering a tort suit unnecessary.

This makes some sense under Georgia’s statutory scheme. In general, Georgia law gives exclusive jurisdiction over wills to probate courts. In fact, it can be argued that O.C.G.A. §15-9-30 might preclude a superior court tort action while the issue of the validity of a will is still pending or has not been brought in probate court yet. O.C.G.A. §15-9-30 provides, in pertinent part that:

1. probate courts have authority, unless otherwise provided by law, to exercise original, exclusive, and general jurisdiction of the following subject matters:
2. The probate of wills;
3. The granting of letters testamentary and of administration and the repeal or revocation of the same;
4. All controversies in relation to the right of executorship or administration;

. . .

(10) All other matters and things as appertain or relate to estates of deceased . . . ;

Unfortunately, there is little other guidance in Georgia on this issue, and the courts in other jurisdictions often do not discuss whether or why a probate remedy is or is not adequate in a given situation. Thus, all we are really left with is an examination of the specific fact situations in which each claim for tortious interference with inheritance may arise.

Many courts, including the Florida courts, will not consider punitive damages to be a legitimate testamentary expectation. Therefore, absent the relief that might be obtained in probate court, a separate action for tortious interference to recover punitive damage claims would not be allowed. In Dewitt, the Florida court commented that for purposes of gauging the “adequacy of relief,” punitive damages, which had been part of the tort claim at issue, would not be considered a valid expectation. Rather, the court felt that adequacy is predicated only on what the probate court can give.

On the other hand, the Iowa courts have held that a beneficiary was not precluded from maintaining an action for tortious interference with a bequest, notwithstanding a previously litigated will contest, since a complete recovery would have been impossible in probate court due to claimant’s punitive damage request.

Obviously, the courts are reluctant to allow duplication of recovery on the part of a plaintiff, and many seem interested in requiring a plaintiff to pursue his claims in probate court first, particularly where the probate court action has the possibility of completely resolving plaintiff’s claims. Clearly we are talking primarily about cases where a plaintiff seeks to exclude a wrongfully procured will from probate. The other categories of interference with expectancy (described supra) generally don’t lend themselves to probate court remedy and a tort suit in superior court is the only option.

Whether or not a separate action for punitive damages would be allowed under Georgia law is questionable given the prohibition against naked punitive damage awards.

Specifically, the Georgia statute for punitive damages makes clear that such damages are not grounds for an independent cause of action. Thus, under Georgia law, no punitive damages could be awarded where there exists no actual or compensatory damages. There is authority, however, for the proposition that attorney fees may qualify as actual compensatory damages for such purpose.

In the end, one of the primary factors in determining whether or not a plaintiff’s tort action will be precluded by a probate proceeding involves assessing whether a probate remedy obtained by the plaintiff would have afforded adequate or complete relief for all the damages he suffered at the hands of the tortfeasor.

In Huffey v. Lea, supra, after going through this analysis, the court found that plaintiff would not have been able to obtain a complete remedy in the probate court action due to the damages which had been requested based solely upon the tortious conduct of the defendant. The court explained that the specific elements of damages requested in plaintiff’s tortious interference claim included: (1) attorney’s fees; (2) the value of plaintiff’s time lost in the operations of his farm; (3) compensation for the mental anguish incurred in contesting the wrongfully procured will; and (4) punitive damages based on the intentional and malicious conduct of the defendants and due to the additional costs which would be necessitated by the appeals process.

At a minimum, I would anticipate that in Georgia, the general prerequisite for the maintenance of an action for damages for tortious interference with an expected inheritance would be a showing that either (1) complete relief was unavailable after pursuing a probate court remedy; or (2) that no remedy is possible through the probate court. However, arguably, complete relief is never really available in probate court given the fact that recovery of one’s legacy does not compensate a plaintiff for all the harm suffered at the hands of the tortfeasor. These necessarily could include court costs, legal fees, lost time from work, emotional distress and perhaps punitive damages, none of which the probate court is likely to provide a remedy for (with the possible exception of attorney’s fees).

V. Lifetime Suits and Living Will Contests.

Separate from the issue of whether an aggrieved party is required to seek a probate remedy first before initiating a tort suit, the question has arisen as to whether a plaintiff is required to wait until an “testator” has died before he can bring suit for intentional interference with his right to share in the testator’s estate.

A few short-sighted jurisdictions have decided that there is no right to bring a suit prior to the ancestor’s death. However, most courts around the country which have addressed the issue of whether or not to sanction lifetime suits have accepted the view that where a person can establish he likely would have received an inheritance from the testator but for the tortious interference of another, he is entitled to recover for the damage done to him regardless of whether the testator is still alive or is dead. The rationale given by these courts can be easily summarized. In the case of a will, once executed, the expectant legatee acquires an interest of immediate economic value and the legal system’s protection of that right against tortious interference is a proper result of the rights’ economic status. Any interference with that right during the testator’s life injures the expectant beneficiary at the moment of the wrongful act.

Furthermore, a suit during the testator’s lifetime has practical advantages.

1. The person with the most important testimony, the testator, may still be capable of testifying.
2. Witnesses are often still available and their memories may not have had time to dim.
3. The injured party can seek relief when the injuries occur, particularly in the case of inter vivos transfers, where there is real danger if dissipation of assets before the testators death.
4. Suit before death could reduce uncertainties and expedite resolution of testator’s affairs after his death. The biggest practical problem with lifetime suits is, of course, the difficulty in proving the amount of damages prior to the death of the testator.

VI. Conclusion

lthough the idea of a tort of intentional interference with expectancy has technically existed in Georgia since at least the early 1900’s, it nevertheless provides a relatively new remedy for disgruntled heirs. Most jurisdictions that have addressed the issues have done so only in recent years, and while its acceptance is not unanimous, a majority of the courts that have considered the tort have approved it. However, since the courts have only recently begun to flush out the parameters, most have not yet fully defined all of its elements, much less addressed the nuances. The cases I have reviewed focused primarily on whether certain elements of the tort have been sufficiently pled. As yet, there is not a lot of guidance on the sufficiency of evidence necessary to prove whether or not an expectancy existed or reasonably was certain to have been realized. Hopefully as more and more cases make it to the appellate courts, we will have more instruction on when the tort has been sufficiently pled and what constitutes adequate proof that recovery for a given tort should be had.

I’ll conclude with a quote from the recent New York case of Dawson v. Vasques. The court reviewed the earlier, infamous New York case of one Father Devine, a priest who tried to prevent a disciple from revoking a will benefiting him, first by use of false representations, then by undue influence and finally by causing the disciple’s “premature demise.” (The Father Devine court ultimately imposed a constructive trust on the estate’s assets.) The Dawson court noted that the applicability of a court imposed remedy:

. . . is limited only by the inventiveness of men who find new ways to enrich themselves unjustly by grasping what should not belong to them. Nothing short of true, and complete justice satisfies equity. . . . The court does not restrict itself by describing all the specific forms of inequitable holding which will move it to grant relief, but rather reserves freedom to apply [a] remedy to whatever knavery human ingenuity can invent.

Sounds a lot like our own forward thinking court in Mitchell v. Langley, doesn’t it?