by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization
This theory that the court finds, at least in this case, has not made its way to California, made me think about the fertile octogenarian which applies to the Rule Against Perpetuities (neither of which is relative to the case at hand). Munn v. Briggs 185 Cal.App.4th 578 (2010) is an appeal of a civil case out of San Diego. Decedent, Janell, had two children, Carlyn and James. Carlyn and her husband Michael are the Defendants, and James is the Plaintiff.
James has appealed the trial court’s sustaining of Carlyn and Michael’s demurrer to his civil complaint for interference with an inheritance expectancy.
James did not contest the Will, and it was admitted to probate along with the Codicil. Janell had a Living Trust and a Pour-Over Will. The Trust was put in place while her husband was alive. It split into three sub-Trusts upon his death. Janell had a general power of appointment over the assets of the Survivor’s Trust. She exercised that power of appointment in the Codicil by directing $1 million each to two grandchildren, only; the children of Carlyn.
James claimed that he did not contest the Will or Codicil in the probate because of the no-contest clause. Instead, he brought this civil action. The codicil was executed December 22, 2007. Janell passed away January 23, 2008.
The Appellate Court took judicial notice of, among other things, the “safe harbor” petition under former Probate Code §21320(a) filed by James in the Probate and the court’s finding that the instant civil action was not a contest under the no-contest provision as the civil filing “did not contest the validity of the codicil.”
James’ civil action claimed that Carlyn manipulated Janell. She kept her grandchildren away from her when she didn’t do what Carlyn wanted. She threatened that she “would not scatter her ashes alongside those of her husband Henry.” Further, that Carlyn convinced Janell, falsely, that James’ children had a better relationship with their maternal grandparents, who were going to leave them sizable inheritances.
James alleged that the $2 million to Carlyn’s children reduced his inheritance by $1 million.
In sustaining Defendants’ demurrer without leave to amend, the Trial Court found that no California case supported a “cause of action of Intentional Interference with an Inheritance Expectancy” and that a determination that such a claim should be recognized in California should not come from a trial court.”
The court reviewed the standards for review of a demurrer on appeal. CCP §430.10(c) discusses demurrers. The standard of review is “de novo.”
Next the court reviewed the background of the tort of “intentional interference with an inheritance expectancy” which is set forth in §774B of the Restatement of Torts for the first time in 1979. The court gave a survey of law review articles and pointed-out that one-half of the states recognize it.
Citing an article “Suggestions for Resort to the Tort” in the University of Toledo Law Review, Vol. 39, Page 772, “unlike probate proceedings, which seek to carry-out the intent of the testator with respect to the distribution of the testator’s estate, a tort action for interference with an expected inheritance endeavors ‘to restore the plaintiff with the benefit arguably lost because of defendant’s tortious conduct.”
Next the court discussed the “availability of the Tort and the Adequacy of a Remedy in Probate.”
Again citing the Toledo Law Review the court said Tort cases fell into three categories (1) Where Probate provides an adequate remedy and the tort claim is not needed; (2) Where Probate would provide no remedy or an inadequate remedy; and (3) Where there is a probate and the result is inadequate. In the third situation collateral estoppel becomes an issue.
“The adequacy of a party’s remedy in probate is also one of the justifications given by courts in those states that have declined to recognize the tort of interference with an expected inheritance.”
The court here concluded that James had an adequate remedy in probate to challenge the codicil without resorting to the Tort. James had standing and had ample opportunity to challenge the validity of the codicil in probate. James claimed the no contest clause prevented him from proceeding in Probate; the Appellate Court disagreed.
The court reviewed the status of no contest clauses and how we got to the current state of the law.
The court stated that “if we accepted James’s argument that he lacked an adequate remedy in probate merely because Janell’s codicil contained a no contest clause, and, if we afforded him the right to sue in tort for interference with an expected inheritance, we . . . would undermine the important public policies served by no contest clauses, we also would all but eliminate ‘will contests’ in probate to the extent the testamentary document(s) contained a no contest clause.” The court noted the new no contest clause statutes did not apply to Janell’s codicil admitted to probate in 2008.
Safe Harbor procedures are now gone, but no contest clauses are enforced against “direct contests” (P.C. §21310(b)) only when brought without “probable cause” (P.C. §21311(b)).
“In light of the Legislature’s ‘wholesale revision(s)’ to the provisions governing no contest clauses,” the court declined to recognize a new tort which might “undermine” the new law.
The court concluded by leaving the door open with different facts by saying, “Our holding in this case is limited. Because we conclude James had an adequate remedy in probate to challenge the validity of Janell’s codicil, we decline under the present circumstances to adopt the tort of interference with an expected inheritance.” That sounds like an invitation to try again, at least in that district.
MARK YOUR CALENDAR: Upcoming Long Beach Bar Estate Planning, Trust and Probate Section Brown Bag Meetings at the Long Beach Superior Court, Dept. G (5th Floor), from noon to 1 PM:
Thursday, October 21, 2010 Judge Mitchell Beckloff on Updates from LA Dept.5: What’s Happening in Probate
December 2, 2010, Jim Birnberg, Esq. on Legislative Updates
NOTE: THE PROBATE CALENDAR WILL HENCEFORTH BE CALLED IN DEPT G on the 5th Floor (still Thursday afternoons, but not in Dept. 11)
John T. Anderson, Section Chair
Certified Specialist in Probate, Trust and Estate Planning
By the California State Bar Board of Legal Specialization