Private Client Services Update - Interference with Inheritance: A Novel Legal Theory

Unless you closely followed the legal victory of the late Vicki Lynn Marshall, a.k.a. Anna Nicole Smith, you are probably unfamiliar with the legal action known as “tortious interference with expectancy of inheritance or gift.” While this tort has been rejected by Virginia courts, it has long been recognized in North Carolina as well as at least nineteen other states. Where it is a cognizable claim, the tort is committed when a third party – through fraud, duress, undue influence, or some other tortious means – intentionally interferes with the receipt of a beneficiary’s expected inheritance or gift. In order to be successful, a claimant must provide proof that, but for the interference, the bequest or gift would have been made.

Tortious interference with expectancy of inheritance or gift is closely related to the more widely recognized action for “interference with a prospective contract,” such as when a third party interferes with a prospective employment or customer relationship, and courts are becoming increasingly willing to extend the same legal protections to noncommercial expectancies. The tort is generally available only when no other legal remedy exists. For example, in a situation where a will is produced and one party claims that a third party exerted undue influence over the decedent to exclude him from that will, probate law presumably provides an adequate remedy through a will contest. However, where a will has been destroyed or the alleged interference prevented its construction altogether, probate law avails no adequate remedy and an action for interference may lie.

Such was the situation in Griffin v. Baucom, a 1985 North Carolina case. Otha Griffin’s wife, Eunice, often vocalized her displeasure about her husband’s decision to bequeath half of his estate to other family members. When Mr. Griffin became feeble and senile, Eunice and her sister, defendant Beulah Baucom, executed a plan whereby Beulah advised the attorney for whom she worked that Mr. Griffin wished to see him to discuss real estate matters. When the attorney arrived at the nursing home, Mr. Griffin requested to see his will, at which time Mrs. Griffin handed him a pair of scissors and assisted him in cutting the will into small pieces. After the destruction was complete, Mrs. Griffin obtained and destroyed all copies of the will, as well as the notes accompanying its preparation. The Court of Appeals decided that the evidence produced by the plaintiffs was sufficient for a jury to find that Mr. Griffin lacked sufficient mental capacity to revoke the will, that the defendants exercised undue influence over him to commit such revocation, and that they intentionally destroyed all known written evidence regarding the contents of the will with the intent to deprive the plaintiffs of their expectancy. Thus, the plaintiffs in the case had met the required elements for a claim of interference with an expectancy of inheritance.

The typical award for interference with an expectancy of inheritance or gift is compensation for the value of the lost expectancy. However, punitive damages, legal fees, lost time from work, and damages for emotional distress may also be awarded, while a will contest does not allow for these non-compensatory damages. Thus, not only does tortious interference with expectancy of inheritance afford a remedy in situations in which probate law does not, it may provide for higher damages as well.

Whether you need assistance with an interference dispute in North Carolina or a traditional will contest in either North Carolina or Virginia, we are experienced in handling inheritance matters and would be pleased to offer you our assistance and expertise.

Jason R. Davis is a member of the firm's Private Client Services Practice Group and Health Care Practice Group, specializing in litigation and trial practice in Virginia and North Carolina. Jason serves on the firm’s Recruiting and Diversity Committees.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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