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In Florida, unlike some other states, there is case precedent on the books (court opinions) which establishes the legal right for someone to sue and win a claim that their expected inheritance was illegally interfered with by the defendant, despite the language of the probate documents and the fact that they did not inherit under the probated will’s terms.

This case is based upon a claim of “tortious interference with an inheritance” also known as “tortious interference with an expectancy,” or “tortious interference in estate planning”.

As explained in the Restatement (Second) of Torts § 774B, this is a claim where “One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he or she would otherwise have received is subject to liability to the other for loss of the inheritance. . . .”

You can sue for damages when something like this happens in Florida – knowing this is especially important for people who have moved here from other states, they may not realize this kind of cause of action exists.

This type of lawsuit is a claim for relief that has been created by the Florida judiciary: there is no specific statute drafted and passed by the Florida legislature which allows this. It is therefore something that many heirs and beneficiaries in Florida may not know exists, if they do not have a probate lawyer to counsel them, or they do not investigate Florida inheritance laws themselves (e.g., by reading blog posts like this one).

Tortious Claim Based Upon Interference with Inheritance That Was Expected But Not in the Probated Will

This tort is a valid basis for challenging a Last Will and Testament in the State of Florida and was first recognized as a valid probate litigation claim by the Florida Third Circuit Court of Appeals in the case of Allen v. Leybourne. In that 1966 case, the Florida court helped a daughter who went to court to fight for an inheritance she claimed was promised to her by her late father but did not appear in his will as it was probated, because of “wrongful acts” by the defendant, his second wife who was the sole beneficiary of the probated will.

From Allen:

It is our opinion that when there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action. While it is true that such a cause of action is difficult to prove, that does not affect the existence of a ground of tort liability.

What is Needed to Prove a Tortious Interference Claim for Expected Inheritance in Florida?

These cases are not easy to bring in Florida — there may be many unhappy relatives and associates after someone dies in Florida who expected to inherit, but did not get included in someone’s will. It’s not enough to be surprised or shocked that you’ve been excluded from a Last Will and Testament.

In Florida, to win a case for Tortious Interference with An Inheritance you must jump a lot of legal hurdles.  These include:

1.  You must be able to provide evidence of these elements of this cause of action:

(1) the existence of an expectancy;
(2) intentional interference with the expectancy through tortious conduct such as duress, fraud, or undue influence;
(3) causation; and
(4) damages.
Nationwide Life Insurance Company v. Perry, citing Claveloux v. Bacotti, 778 So. 2d 399, 400 (Fla. Dist. Ct. App. 2001); Whalen v. Prosser, 719 So. 2d 2, 5 (Fla. Dist. Ct. App. 1998); Allen v. Leybourne, 190 So. 2d 825, 829 (Fla. Dist. Ct. App. 1966); see also Chase v. Bowen, 771 So.2d 1181, 1186 (Fla. Dist. Ct. App. 2000)(Sharp, J., dissenting).

2. You have to be able to show the Florida Probate Judge that you are advancing the Tortious Interference With An Expected Inheritance lawsuit as a last resort after unsuccessfully attempting to get adequate relief in other ways.

As the Florida Supreme Court explains in the case of DeWitt v. Duce, “… if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortuous interference claim may be pursued.” (However, see Schilling v. Herrera
District Court of Appeal of Florida, Third District. April 04, 2007 952 So.2d 1231 2007 – where the court found the case factually distinguishable from DeWitt, and therefore inapplicable)

3. You must be able to show that the person who has died, the “testator” is the person who has been wronged — not you, the beneficiary.

The purpose of this tort claim is not to help beneficiaries or heirs, it is to protect the deceased person’s “… right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights.” Whalen v. Prosser.

As the Whalen court explains:

Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations. The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is. Thus, the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights.

4. You must be able to obtain your damage award from the defendant, the individual wrongdoer, if you win your case.

This is a tort action against this person, and any judgment for the plaintiff will be one for money damages against the defendant’s individual assets. As with other torts, both compensatory and punitive (punishment) damages are available. However, the claim will not allow you to alter the language of the will itself or amend its terms.


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