In the October 17, 2019 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “A Piece of the Tort(e): Tortious Interference With Expectancy of Inheritance.”
While recently gaining traction in both the public eye and the legal field, the claim of tortious interference with expectancy of inheritance is actually quite old and its interpretations vary among different jurisdictions, including in Pennsylvania.
Recently, a potential client came to me with the claim that his sibling was guilty of tortious interference with expectancy of inheritance. Although I decided not to take on the client for several reasons, his correspondence brought to my attention a twist in the traditional tortious interference claim. While recently gaining traction in both the public eye and the legal field, the claim of tortious interference with expectancy of inheritance is actually quite old and its interpretations vary among different jurisdictions, including in Pennsylvania.
The claim has especially rose in prominence due to the matter of Marshall v. Marshall, a case from the early 2000s. Vickie Lynn Marshall—better known as Anna Nicole Smith—raised this claim against her stepson, E. Pierce Marshall, for allegedly interfering with an expectancy from her late husband’s estate. Her husband, J. Howard Marshall II, died without providing for his wife in his will. Yet Smith claimed her husband had the intention of providing to her a “catch-all” trust. But her stepson, according to Smith, deliberately interfered with this gift by altering, destroying and falsifying documents that would have indicated J. Howard Marshall’s intent toward his wife, Smith, among other various deceptive actions that were done together with an attorney of Marshall’s. The case was complicated; decisions were reversed, and it ultimately ended up in the U.S. Supreme Court due to questions of jurisdiction. Eventually, after Smith had already passed away, the Supreme Court ruled that her estate was not entitled to the first, larger award it had been granted before.
Of course, most cases concerning tortious interference with expectancy of inheritance are not as high-profile as Marshall v. Marshall and its related suits. Yet, these cases do share a similar underlying intrigue—the belief that someone wrongfully interfered with one’s right to inherit from a deceased’s estate. It is not a stretch to say that being included in a will means one is close to the testator. Whether as a family member, close friend, or other loved one, inclusion in a will supports the testator’s desire to provide for that person in some capacity when they (the testator) passed on from this life. To prevent a testator’s dying wishes from being carried out is to wrong the beneficiary and disrespect the wishes of the testator. Yet, the defendant in these cases was also a beneficiary and thus close to the deceased. Unsurprisingly, these cases almost always involve the all too common and tragic story of family and other close relationships turning sour and deceitful.
Because of the alleged tortious conduct of one party in connection with a deceased testator’s estate, claims such as these can be taken to civil court or probate court. The procedures between the two are different just as much as the focus of the litigation would be. The civil court proceedings are similar to any other tort action, with the focus on the plaintiff and the defendant’s obstructive actions. Comparatively, the probate proceedings would more explicitly focus on the testator’s intent and ensure the proper distribution of the deceased’s assets.
The varied circumstances behind these types of claims, however, also color which legal remedies can practically be pursued for the person making the claim. For example, if someone claims they would have been written into the testator’s will were it not for another party’s interference, that person might not even have legal standing to take the claim to probate court depending on their relationship with the testator.
At the same time, not all state courts have explicitly recognized the claim of “tortious interference with expectancy of inheritance.” Some courts recognize only certain specific varieties of claimed “interference” (by recognition, meaning there is a published court opinion explicating the tort). The tort can be regarded as a last resort for those cases where the probate court cannot properly remedy the problem. But, consequently, many state courts do not recognize the claim due to the very reason that it upsets the established function of the probate court system. For those cases which involve parties in different locales, the forum could thus very well impact what course of action to take. A standard interpretation of the tort comes from the Restatement (Second) of Torts Section 774B (1979):
“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.”
In Pennsylvania, however, the tort has a state-specific formulation based on a 1904 Pennsylvania Supreme Court case (Marshall v. De Haven). The Pennsylvania-specific version of the tort exists only when the actions of the defendant prevented the execution of a will that would have been favorable toward the plaintiff. More details of this formulation can be found in Judge Zoran Popovich’s opinion in Cardenas v. Schober, 783 A.2d 317 (2001). Due to this opinion, the tort is substantially narrowed in Pennsylvania courts.
Attorneys licensed to practice in the states close to Pennsylvania may be curious as to the tort’s status elsewhere. New Jersey does appear to recognize the tort insofar there was a single case where that claim was made, but that case did not produce a published opinion which would have elaborated a state-specific interpretation of the tort. New York has explicitly declined to recognize the validity of this tort. In New York, instead, there is a well-established system of using constructive trusts as a “fix” for those who claim they have been wronged out of their inheritance. While Delaware courts have published a series of opinions that appear to not recognize the tort, the language of the opinions themselves seems to indicate that under a very specific set of circumstances the tort could be recognized (which appears not to have happened yet).
At first glance, it may seem that Pennsylvania-based lawyers ought not to care so much about the claim due to its restricted recognition in Pennsylvania and its tenuous recognition in nearby states. Yet, cases are not always between parties living in the same state. Significant connections to other states, especially those that may explicitly recognize the claim, could easily complicate the situation. Depending on the circumstances surrounding the location of the parties or the actions leading to the tort, a party living in a state that does not recognize the claim of tortious interference with expectancy of inheritance may very well consider the laws of a state that does, if applicable. Resultantly, it would be of great value to any practicing attorney in the civil courts to familiarize themselves with the claim of tortious interference with expectancy of inheritance not only in Pennsylvania, but far beyond—you never know what potential client may come your way.
Edward T. Kang is the managing member of Kang Haggerty & Fetbroyt. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at email@example.com.
Reprinted with permission from the October 17, 2019 edition of “The Legal Intelligencer” © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or firstname.lastname@example.org.