Your grandmother made a will years ago. She updated it after all her grandchildren were born. She worked hard and earned a good living and received an inheritance from her late husband. All told, she plans to leave over two million dollars to her children and grandchildren. However, an interloping child (your aunt) convinces your grandmother to leave everything to her and just her. Your grandmother dies and everyone finds out about the will. What can you do?
It’s no secret that you can challenge a will in NC. However, challenging a will, also known as a caveat proceeding, just invalidates a will. It doesn’t provide redress for other harms created by the person who may have unduly influenced the maker of the will (Testator). For that, and other actions that interfere with an inheritance, NC has recognized a cause of action called Malicious and Wrongful Interference with the Making of a Will. The cause of action is considered to be a “tort.” Torts aren’t delicious pastries but legal wrongdoings.
Other than being a mouthful, it may also be a very valuable avenue to seek redress for legal harms done by an offending family member. But the existence of this remedy begs a couple of questions:
- What are the elements of Malicious and Wrongful Interference with the Making of a Will? In other words, how do you prove your case?
- Must a will caveat be filed prior to seeking any tortious remedy or can the claim be brought independently?
- Elements
The case law regarding this cause of action in North Carolina is rather sparse—although NC is one of the first states to recognize it. The following are cases dealing with this cause of action.
– Dulin v. Bailey, 90 S.E. 689 (N.C. 1916), recognizing that a cause of action exists where a legal heir was deprived of an inheritance by defendant’s destruction of a will and admission of a previous will to probate.
– Bohannon v. Trust Co., 210 N.C. 679, 188 S.E. 390 (1936), recognizing that there was a cause of action where a legal heir was deprived of inheritance due to the fraudulent inducement of the testator by defendants.
– Griffin v. Baucom, 328 S.E.2d 38 (1985), recognizing that there was a cause of action where a legal heir was deprived of inheritance due to defendant’s undue influence upon the testator.
None of these cases, however, specify how to establish a prima facie claim, much less what the constituent elements of the claim are. Looking at the Restatement (Second) of Torts § 774B Intentional Interference with Inheritance or Gift, it seems to mean any intentionally tortious means.
. . . [T]he liability stated in this Section is limited to cases in which the actor has interfered with the inheritance or gift by means that are independently tortious in character. The usual case is that in which the third person has been induced to make or not to make a bequest or a gift by fraud, duress, defamation or tortious abuse of fiduciary duty, or has forged, altered or suppressed a will or a document making a gift
- 774B Comment C. “Tortious Means”.
The most explicit statement of the tort comes from Griffin: “if one maliciously interferes with the making of a will, or maliciously induces one by means of undue influence to revoke a will, the party injured can maintain an action against the wrong doer.” Id. at 41. Thus, the elements broken down are: (1) malicious interference; or (2) malicious inducement; or (3) undue influence; (4) that interferes with the making of a will; or (5) causes its revocation.
While the court in Griffin did not define “malicious interference/inducement”, they did define “undue influence”.
- Undue Influence
Undue influence is stated by the court as follows:
Undue influence is defined as “a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.” In re Estate of Loftin and Loftin v. Loftin, 285 N.C. 717, 722, 208 S.E.2d 670, 674-75 (1974). There are four general elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence. See 25 Am.Jur.2d Duress and Undue Influence § 35, p. 397; see also Curl v. Key, 64 N.C.App. 139, 306 S.E.2d 818 (1983), rev’d on other grounds, 311 N.C. 259, 316 S.E.2d 272 (1984).
Id.
- Malicious Interference/ Inducement
The basis of the original claim for wrongful interference with the making of a will emerged from precedent recognizing a cause of action for malicious interference with a contract.
“The recognition by the courts, both in England and in this country, of the right of action to the party injured by reason of the malicious and wrongful interference by third persons with contract rights is well settled.” Bohannon v. Trust Co., 210 N.C. 679, quoting Lewis v. Bloede, 202 Fed. Rep., 7 (15, 16, 17). Considering that the justification of the emergence of the claim for wrongful interference with the making of a will is based on this state’s courts long recognition of the claim for malicious interference with a contract, we can draw the definition of “malicious inducement” from such cases.
In Childress v. Ables, in examining a claim for tortious interference of contract, the court lays out the definition of tortious interference in general. “Claims for tortious interference are justified by the ‘overwhelming authority’ allowing for recovery against ‘an outsider who knowingly, intentionally, and unjustifiably induces one party to a contract to breach it to the damage of the other party.’” Childress v. Abeles, 240 N.C. 667, 674, 84 S.E.2d 176, 181 (1954) (emphasis added) (citations omitted). We can therefore, assume the same definition applies to tortious interference of the making of a will.
Thus “malicious inducement” for our purposes can be said to be defined as knowing, intentional, and unjustifiable inducement. Likewise, malicious interference can be defined as knowing, intentional, and malicious interference.
- Appropriate Filing of Action
Because of a caveat proceeding’s limited scope, a claim for tortious interference can be made independent of a will caveat where the caveat proceeding would not provide an adequate remedy. Fink v. Middleton, No. COA16-630 (N.C. App. Dec. 30, 2016).
In Middleton, the court found that the sister had standing to challenge inter vivos conveyances because the caveat proceeding would not have provided the sister with adequate relief i.e., it would only allow her to set aside the will but not recover the assets she claimed should have been part of the estate but for her brother’s wrongful conduct.
This standard holds true even if a will caveat has already been filed. In Shoaf, the aggrieved heirs sought compensatory and punitive damages for conversion, breach of fiduciary duty, and constructive fraud by filing a lawsuit against the grandson who allegedly had improperly influenced the testator. Id. Unlike Middleton, the caveat associated with the decedent’s estate in Shoaf was filed prior to the initiation of the Superior Court action. Nonetheless, the Court of Appeals held the action did not constitute an impermissible collateral attack on the validity of the decedent’s will. Shoaf v. Shoaf, 219 N.C. App. 471, 727 S.E.2d 301 (2012).
Thus, a will caveat proceeding is neither a necessary precondition to filing for tortious interference or a barrier to recovery for the same.
If you are seeking legal remedies for an interference with inheritance you may have a viable claim. Speaking with an experienced attorney will help determine whether you have a case. For a free consult call 704-259-7040.
Elder Law Attorney 704-259-7040
