The latest in a series of law review articles has been released that relate to the tort of “Tortious Interference With Expectation of Inheritance.” In those states that recognize this tort, it gives someone the right to sue a decedent’s beneficiary or distributee for money that is allegedly wrongly received in an inheritance when the following elements proved by preponderance of the evidence (i.e., 50.1% proof for each element):
- the existence of the expectancy;
- that the defendant intentionally interfered with the expectancy;
- that the interference involved tortious conduct such as fraud, duress, or undue influence;
- that there was a reasonable certainty that the plaintiff would have received the expectancy but for the defendant’s interference; and
Irene D. Johnson, Tortious Interference With Expectation of Inheritance or Gift – Suggestions for Resort to the Tort, 39 U. Tol. L. Rev. 769, 771 (2008) (citing Sonja Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229, § 2 (1983)).
In New York, however, this tort is not recognized. But aggrieved beneficiaries may resort to the remedy of “imposition of a constructive trust” in many, although not all, situations in which that person would have sued for tortious interference with expectation of an inheritance in other states, and with similar benefits. Diane J. Klein, A Dissappointed Yankee in Connecticut (or Nearby) Probate Court: Tortious Interference With Expectation of Inheritance – A Survey With Analysis of State Approaches in the First, Second, and Third Circuits, 66 U. Pitt. L. Rev. 235, 282-86 (2004).
The leading case for the imposition of constructive trusts in New York surrogate’s court, as a remedy for the same kinds of fraudulent actions that the tort of interference with expectancy of inheritance is meant to address, is the New York Court of Appeals decision in Latham v. Father Divine from 1949.
In that case, Lucy Latham bequeathed Father Divine, a charismatic preacher, and several of his associates, the bulk of her assets in her Will. Several cousins of the deceased testatrix brought significant evidence that Ms. Latham intended to draft a new Will for their benefit, but that associates of Father Divine physically stopped her from executing it and the cousins allege that the preacher’s associates ultimately killed her to prevent her from executing another Will. After a settlement in Surrogate’s Court, these cousins sued Father Divine and his associates in order to have the court impose a constructive trust on the assets Father Divine received. This would effectively force him to turn over the money and property that he received to the plaintiffs.
The Court, in that case, explained (page 30) that:
The answer is in Ahrens v. Jones (169 N. Y. 555, 561): “‘The trust does not act directly upon the will by modifying the gift, for the law requires wills to be wholly in writing, but it acts upon the gift itself as it reaches the possession of the legatee, or as soon as he is entitled to receive it. The theory is that the will has full effect by passing an absolute legacy to the legatee, and that then equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee, as a trustee ex maleficio, to turn over the gift to them.'” (emphasis added)
As noted by Prof. Johnson (supra at 239), constructive trusts may not have all of the advantages of the tort remedy. For instance, an aggrieved expected beneficiary cannot use this remedy against an innocent third party to whom estate property was sold after receipt of the assets by the fraudmeister. Also, a constructive trust will not allow a plaintiff to get actual damages, compensatory damages, punitive damages, or a jury trial.
But for those of us in New York, the constructive trust is all we’ve got! As readers of this blog know, our office has a very busy estate litigation practice so if you think that you, or someone you know, has been cheated out of an inheritance by some wrongdoing by another, you can call us to discuss your case.
Picture of Father Divine courtesy of tailorstreetstudio.