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Interference with inheritance

A family came into our office three years ago.  Their 93-year-old aunt had died a month earlier, and while going through her papers they'd found a canceled check for $350,000, payable to her life insurance agent.  We wrote the guy a letter asking him where he put the money so we could include it in the estate.  His lawyer wrote back and told us it was a gift.

Yeah, surrrre.  The aunt had lived through the Depression, and was one of many people for whom that was a quite formative event in their financial decision-making:  the family told of finding drawers full of sheets of aluminum foil that she'd used and smoothed over so they could be used again, and the most anybody in the family got for Christmas was a check for fifty bucks.  So the idea of her bestowing 350 large on her insurance agent, strained credulity, shall we say.

The normal course would have been to file an action in probate court to recover the money as an asset of the estate, but there's an alternative:  back in 1993, the Ohio Supreme Court, in Firestone v. Galbreath, recognized a cause of action for wrongful interference with inheritance, the elements of which are

(1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional interference by a defendant(s) with that expectancy of inheritance; (3) conduct by the defendant involving the interference which is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty that the expectancy of inheritance would have been realized, but for the interference by the defendant; and (5) damage resulting from the interference.

The civil action has some advantages over the probate action.  We sued the defendant's employer under respondeat superior and for negligent supervision, and we asked for punitive damages, neither of which could have been done in probate court.  And, of course, we got a jury trial.  The case went to trial in April of last year, and the jury had no trouble finding against both the agent and his employer for the full amount.  They tacked on $60,000 in punitives against the agent, and the court awarded attorney fees and prejudgment interest on top of that. 

The only real legal argument the defendant advanced on appeal (the case against the employer was settled) was that the action was dependent upon a determination that the will was valid, and only the probate court could do that.  The 8th District shot that argument down last week and affirmed the judgment in Sull v. Kaim.

As might be expected, there's very little Ohio case law on this subject since Firestone was handed down.  Indeed, just three years ago the 4th District held in Roll v. Edwards that an action for wrongful interference with inheritance couldn't be maintained unless the plaintiffs had first exhausted their remedies in the probate court, a position flatly at odds with Firestone.

Needless to say, this isn't something that's going to come up often, but you should be aware of it.  It came in real handy for us.

One of the many differences between WalMart and this blog is that this blog will be closed for the holiday tomorrow.  I'll be back on Thursday with a review of the US Supreme Court's 2006 term.  See you then.

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