John was a loving son who spent years taking care of his Father, and his sprawling South Florida home. Upon his Father’s death John learns that he will not be inheriting what he expected. In fact all of his Father’s estate will instead be given to John’s sister who never even spoke to their Father. John thinks that the lawyer who drafted his Father’s will interfered with his inheritance. Now what? In Florida this is called a case of tortious interference with expectancy or sometimes tortious interference with estate planning, here is what you need to know.
- In the past a lawyer in the situation cited above could not be sued because there was no privity between the parties. In other words, the Father here hired the lawyer and only he had the power to sue the lawyer and since he is dead that right passes only to the Personal Representative.
- Florida Courts backed away from this hard rule and eventually allowed a third party who wasmeant to be a beneficiary of the will to sue based on the will itself.
- In 2013 Florida Courts broadened the loopholes in the case of Dingle v. Dellinger and stated the exception for beneficiaries to sue also extended to other documents and other aspects of estate planning.
What will you have to prove to bring a claim for tortious interference of expectancy?
- Decedent (the deceased) had a fixed intention to leave a portion of his or her estate to the plaintiff; and
- Strong probability existed that the decedent would have carried out his or her intention but for the wrongful conduct of Defendant, whose interference must have been intentional.
This is an action at law for money damages that can be collected against the personal assets of the liable party. In Florida a party suing for this also has a right to a jury trial.
Importantly this action is only available if there is no adequate alternative remedy available in the Probate Court.
Does this make sense, to allow the beneficiaries to have an action against the Estate attorney? The Courts seem to think so under the argument that the main purpose of the estate planning is to benefit the beneficiaries.