Pennsylvania Fiduciary Litigation : Pennsylvania Trusts and Estates Lawyer & Expert Witness : Patti Spencer Law Firm : Fiduciary Litigation, Planning : Lancaster, Harrisburg, Philadelphia, Pennsylvania

I've heard it said that there is not a remedy for every wrong, but it has always troubled me that a person "done out" of an inheritance had no recourse.  Unless the person could fit themselves into the very limited circumstances of a third party beneficiary, most of these "disinherited" persons had no remedy agaisnt the person who wronged them.

There is new law in Pennsylvania and this is no longer the case.  In a tremendous victory for the disinherited, the PA Superior Court has affirmed the existence of a tort for tortious interference with inheritance.

"Sometimes people marry for money, and sometimes people kill for money. But when someone has done you out of an inheritance, can you sue for money? That, in a nutshell, is the question of tortious interference with expectation of inheritance."    -   Thus begins  Diane J. Klein in her article, "A Disappointed 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"   University of Pittsburgh Law Review Vol. 66:235.

She says of Pennsylvania at p.275: 

"In a pair of recent Pennsylvania Superior Court cases on appeal from the Montgomery County Court of Common Pleas, Judge Zoran Popovich has held that Pennsylvania recognizes the tort, although not in its Restatement (Second) Section 774B formulation.212 Instead, apparently relying on the 1904 case of Marshall v. De Haven, [58 A. 141 (Pa. 1904)] Judge Popovich has identified a Pennsylvania specific version of the tort, available exclusively when the tortious conduct prevents the execution of a will in favor of the plaintiff. This specific version of the tort remedies the specific injury of one who lacks standing to challenge a will, or would not benefit from such a challenge because the instrument under which he or she would benefit was never executed.. . . . until Judge Popovich, apparently no other Pennsylvania jurist regarded Marshall v. De Haven (or Mangold v. Neuman, or Cole v. Wells, other cases cited by Judge Popovich) as recognizing the tort. "

The two cases are: 

Cardenas v. Shober, 783 A.2d at 319-20,  and

 McNeil v. Jordan, 814 A.2d 234 (Pa. Super. Ct. 2002).

The elements of the tort, as set for by the court in Cardenas, are:

     (1)     The testator indicated an intent to change his will to provide a described benefit for plaintiff,

     (2)     The defendant used fraud, misrepresentation or undue influence to prevent execution of the intended will,

    (3)      The defendant was successful in preventing the execution of a new will; and

    (4)       But for the Defendant’s conduct, the testator would have changed his will.

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Thanks to Vickie Lynn Marshall your next will contest may be in federal court. You probably know her as Anna Nicole Smith - the 1993 Playmate of the Year and TV reality show star who married oil billionaire J. Howard Marshall when he was 89 and she was 26 (let me help you with the math, that’s 63 years difference in age.)  Marshall died 13 months after his marriage. Then began a lengthy battle over Anna Nicole’s claim for part of her deceased husband’s estate. 
    

Anna Nicole (or Vickie) claimed her husband promised her half his estate if she married him. But Marshall did not include anything in his will for Anna Nicole. The Texas Probate Court where Marshall’s will was probated ruled that Smith had no rights whatsoever to her deceased husband’s estate. (Remind me not to live in Texas.) She took her case to a bankruptcy court in California on the theory that her possible interest in her deceased husband’s estate was an asset in the bankruptcy. She accused J. Howard’s son, E. Pierce Marshall of scheming to deny her the inheritance by fraud, forgery and overreaching. She also filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected from J. Howard.

The bankruptcy court ruled in her favor. On appeal the 9th Circuit overturned the bankruptcy court, saying the case really belonging in Texas Probate Court citing the “probate exception.” The 9th Circuit held that the “probate exception” to federal jurisdiction should be read broadly to exclude from the federal courts’ adjudicatory authority not only direct challenges to a will or trust, but also questions which would ordinarily be decided by a probate court in determining the validity of the decedent’s estate planning instrument, whether those questions involve fraud, undue influence, or tortuous interference with the testator’s intent. The court also held that a State’s vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any probate related matter, including claims respecting tax liability, debt, gift, and tort

SCOTUS, in a unanimous opinion written by Justice Ruth Bader Ginsberg, overturned the ruling of the 9th Circuit. Ginsberg wrote that in general, state courts are given the authority to oversee wills and the administration of estates. In this case, however, Ginsberg said that Smith’s accusations against her husband’s son make this more than just a probate matter. See Marshal v, Marshall, 547 U.S. (2006).

Here are some excerpts from Justice Ginsburg’s opinion:

“This Court rejects the Ninth Circuit’s alternate rationale that the Texas Probate Court’s jurisdictional ruling bound the Federal District Court. Texas courts have recognized a state-law tort action for interference with an expected gift or inheritance.”

“ It is clear, under Erie R. Co. v. Tompkins, 304 U. S. 64, that Texas law governs the substantive elements of Vickie’s tortuous interference claim. But it is also clear that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory tort.”

“At issue here, however, is not the Texas Probate Court’s jurisdiction, but the federal courts’ jurisdiction to entertain Vickie’s tortuous interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre.”

Interestingly, the Solicitor General entered an Amicus brief supporting Anna Nicole and supporting expanded federal jurisdiction.

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