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John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful Interference with Inheritance, 65 Stan. L. Rev. 335 (2013).

In their forthcoming article, Torts and Estates: Remedying Wrongful Interference with Inheritance, John C.P. Goldberg and Robert H. Sitkoff illustrate the potential pitfalls of recognizing causes of action without any awareness or consideration of how other areas of law deal with claims arising out of similar facts.  They argue that courts’ relatively recent recognition of the tort of wrongful interference with an expected inheritance is ill-conceived for two reasons.  First, it is unnecessary given the remedies available under inheritance law—a will contest or action for restitution by way of constructive trust.  Second, it conflicts with specialized inheritance law doctrines and procedures (such as inferences, presumptions, and burden shifting schemes, higher evidentiary standards, bench trials, and short statutes of limitations) developed to address the evidentiary challenges raised when the only person who can conclusively clarify or confirm his donative wishes is dead.  A disappointed expectant beneficiary who brings a claim for tortious interference with an expected inheritance will have fewer procedural hurdles to clear because courts have rejected or ignored the rules and procedures that apply to will contests and restitution claims.  A tort plaintiff may also recover substantial damages—including nonpecuniary and punitive damages—remedies that are unavailable in a will contest or action for restitution.

Goldberg and Sitkoff further argue that interference with expected inheritance claims are problematic conceptually.  Since a donor’s wishes are the guiding principle of inheritance law, a disappointed expectant beneficiary has no independent right to the donor’s property absent the donor’s exercise of his freedom of disposition.  As such, when a disappointed expectant beneficiary brings a wrongful interference with an expected inheritance claim, she is suing to vindicate the donor’s right to freedom of disposition rather than her own rights.  However, as every first year law student knows, a tort plaintiff cannot recover for a wrong done to another person.  She can only sue for a wrong done to her.  Of course, we suspect that a disappointed expectant beneficiary doesn’t sue only (or primarily) to vindicate the donor’s freedom of disposition but to secure her interest in the property.  While that may be the case, Goldberg and Sitkoff point out that the law cannot recognize her interest in the decedent’s property independent of decedent’s wishes because such interest would directly conflict with decedent’s freedom of disposition.

As a Torts teacher and Estates & Trusts teacher, I am a bit embarrassed not to have recognized the conceptual inconsistencies inherent in the tort of wrongful interference with an expected inheritance.  I also had not thought about its conflict with the specialized rules and procedures that have been developed to address the evidentiary problems created by posthumous litigation.  According to Goldberg and Sitkoff, neither did the American Law Institute (ALI) nor Dean William Prosser, a reporter of the Restatement (Second) of Torts.  Goldberg and Sitkoff posit that subject matter specialization is partly to blame for this oversight.  Torts professors and practitioners often know very little about inheritance law and, as a result, failed to recognize before endorsing the tort of interference with an expected inheritance, that it conflicted with fundamental inheritance law doctrines and policies.  Goldberg and Sitkoff also attribute some responsibility to the ALI’s “top-down law reform of the common law through innovative Restatement … provisions that have not been tested in practice or vetted in the literature.”  Few courts had recognized the tort in 1979 when it was included in the Restatement (Second) of Torts but which has since been adopted by a significant minority of appellate courts and is increasingly the subject of law review articles and discussion in leading casebooks.  Law students also tend to remember the most famous tortious interference case—Marshall v. Marshall, 547 U.S. 293 (2006)—involving Playboy Playmate Anna Nicole Smith’s claim against her deceased husband’s son (her former stepson).

I must admit that until I read this article I commended courts’ willingness to award damages to petitioners who had been deprived of an expected inheritance or bequest as a result of defendant’s undue influence or fraudulent or coercive inducement of the donor to make a will or nonprobate transfer in defendant’s favor.  In my view, although the disappointed expectant beneficiary could honor the decedent’s wishes by bringing a will contest or action for restitution, it did not seem just that the wrongdoer would merely lose the property he wrongfully secured and not suffer any other financial consequences.  The risk of a will contest or restitution action also seemed insufficient to deter a potential wrongdoer given the unavailability of damages.  In addition, plaintiffs often assert tort claims alongside or in lieu of equitable claims.  For example, a custodial parent who has been wrongfully deprived of his child’s custody is entitled to the child’s return but can also sue for tortious interference with custodial rights.

After reading the article, I am no longer sure whether I support the tort.  Goldberg and Sitkoff suggest that tort law, as compared to inheritance law and its specialized rules and procedures, is unlikely to improve the accuracy of the court’s determination of the donor’s wishes.  Nevertheless, I am not yet convinced that inheritance law’s specialized rules and procedures are always better able to ascertain donor’s wishes.  Is it possible that those rules make it easier for a wrongdoer to circumvent a donor’s wishes? After all, the wrongdoer has little to lose in a will contest or restitution action given that even the cost of defending the suit will be paid out of the donor’s estate.

Goldberg and Sitkoff acknowledge that inheritance law’s specialized rules and procedures may not be optimal but they object to courts’ ad hoc rejection of these rules by recognizing “a rival tort action” without reason.  I agree that unprincipled reform could potentially be disastrous and agree that it is troubling that in those states that recognize the tort, a disappointed expectant beneficiary can “choose between two causes of action with differing standards of proof.”  But I do not believe that courts have recognized the tort of interference with an expected inheritance without reason and those reasons might be equity and deterrence.  Even if inheritance law’s rules are better able to protect decedent’s wishes, in those cases where courts determine that the defendant wrongfully obtained decedent’s property, inheritance law’s remedies are arguably inadequate.  The petitioner is not compensated for the money, time, and energy expended on the litigation, and the wrongdoer will have gotten away with making a mockery of decedent’s wishes even if only during the pendency of the litigation as he shamelessly uses the donor’s property to finance his ongoing attempt to retain the property in circumvention of the decedent’s wishes.

I hope that Torts scholars and Estates & Trusts scholars will read this article and conclude, as I have, that we must address the inconsistencies between inheritance law and tort law.  We might conclude that courts should eliminate inheritance law’s specialized rules and procedures or should extend them to tortious interference with an expected inheritance claims.  Or we might conclude that inheritance law adequately protects a donor’s freedom of disposition and that there is no need or room for tort law.  Whatever we decide, this article demonstrates the benefits of collaboration across fields.  Had the drafters of the Restatement (Second) of Torts had the benefit of the insights of Estates & Trusts scholars, these questions might have been addressed before 1979.

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Cite as: Solangel Maldonado, Tort Law Meets Inheritance Law, JOTWELL (March 4, 2013) (reviewing John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful Interference with Inheritance, 65 Stan. L. Rev. 335 (2013)),