Florida Probate Litigation Blog

Tortious interference with an inheritance

I think we all agree that we have the right to choose who we want to receive our remaining assets when we die. Unfortunately, there are people who intentionally interfere with a testator’s (the person who makes a will) ability to transfer property upon their death.

To protect the testator right to freely dispose of their property upon death, there is a cause of action that can be brought in Florida called Tortious Interference with Expectancy. It is important to note that although this action is brought by a beneficiary, this action is actually brought to protect the testator’s rights, not the beneficiary’s.

What are the elements for a cause of action for tortious interference with an expectancy or inheritance?

There are four elements:

(1) the existence of an expectancy;

(2) intentional interference with the expectancy through tortious conduct;

(3) causation; and

(4) damages.

Schilling v. Herrera, 952 So. 2d 1231, 1234 (Fla. 3d DCA 2007)

1. What is an expectancy?

Expectancy is the type of inheritance of gift you expected to receive.

For example, let’s say Grandma Alice creates a will that leaves her property grandsons Bob Carson, equally. Ben and Carson each have an expectancy of 50% of Alice’s estate. Of course, they don’t have any actual rights to her property until she dies, and she can decide to change the beneficiaries if she wants to.

2. What types of activity constitute intentional interference?

There are many different ways that a defendant can tortuously interfere with the expectancy. They can forge, change, or destroy documents. Or, they can cause the testator to change current estate planning documents create new ones. Sometimes a defendant will convince a testator not to make a will at all, which can interfere with an expected inheritance. Lastly, they can convince the testator to give property away before they die, so it will not be passed through a will.

Tortious interference with expectancy is an action that is brought directly against the wrongful actor. If successful, a judgment for money damages is entered against that person personally.

3. What does causation mean?

Causation means that but for the actions of the defendant interfering, the plaintiff would have received the inheritance or gift. A plaintiff must prove that they would have received the inheritance to a reasonable certainty.

4. Damages

The cause of action is typically brought by a beneficiary for money damages that resulted from the wrongful conduct. The monetary damages are for the loss suffered by the beneficiary deprived of the inheritance.

If the property has special value, there are also equitable remedies such as restitution, constructive trust, or equitable lien available.

Tortious interference with expectancy can only be brought after probate remedies are exhausted.

It is important to note that tortious interference with an expectancy with regard to a Will is a fairly rare cause of action because it is only available if there is no adequate remedy in probate court.

In other words, let’s go back to the prior example:

Grandmother Alice creates a will that leaves her property to her two grandchildren Bob and Carson. Two years after she executes the will, Carson unduly influences Alice to create a new will leaving everything to Carson.

Of course, in this example Carson has intentionally interfered with Ben’s expectancy of half of the inheritance. However, Bob has the ability to bring a “Will Contest” action in a Florida Probate Court to invalidate Grandma Alice’s second will. Because Bob can bring a will contest, he is precluded from bringing an action for tortious interference. 

If you think you may have an action for tortious interference with an inheritance, or if you think you have another probate litigation matter, please call PersanteZurowesteto speak with one of our attorney's at (727) 796-7666.