I’ve been a fan of T&E Harvard Law professor Robert Sitkoff‘s work since he co-authored a groundbreaking article in 2005 entitled Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, using banking data to demonstrate how states (including Florida) compete with each other for billions in new trust business by tailoring their trust legislation to attract this business. (I wrote about that article here.)

Prof. Sitkoff has now teamed up with fellow Harvard law professor John Goldberg, an expert in tort law, to argue for abolishment of the interference-with-inheritance tort in a provocative article entitled Torts and Estates: Remedying Wrongful Interference with Inheritance. If you’re a busy probate litigator with time to read only one academic paper this year, make it this one. Here’s the abstract:

This paper examines the nature, origin, and policy soundness of the tort of interference with inheritance. We conclude that the tort should be repudiated because it is conceptually and practically unsound. Endorsed by the Restatement (Second) of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted by the courts of nearly half the states. But the tort is deeply problematic from the perspectives of both inheritance law and tort law. It undermines the core principle of freedom of disposition that undergirds all of American inheritance law. It invites circumvention of principled policies encoded in the specialized rules of procedure applicable in inheritance disputes. In many cases, it has displaced venerable and better fitting causes of action for equitable relief. It has a derivative structure that violates the settled principle that torts identify and vindicate rights personal to the plaintiff. We conclude that the emergence of the interference-with-inheritance tort is symptomatic of two related and unhealthy tendencies in modern legal thought: the forgetting of restitution and equitable remedies, and the treatment of tort as a shapeless perversion of equity to provide compensation for, or deterrence of, harmful antisocial conduct.

So what’s it all mean for working probate litigators?

No matter what the public policy merits (or lack thereof) of the interference-with-inheritance tort action may be; it’s here for now, it’s a fact of life, and working probate litigators ignore it at their peril [click here]. So the question is: can you use this oddball tort to legitimately advance your client’s objectives in a way pure probate actions can’t? Answer: MAYBE. Not only does this tort action open up possible avenues for redress otherwise foreclosed under traditional inheritance law, it may also deliver tactical advantages you usually don’t get in Florida probate proceedings: such as having your claim tried before a jury, having your claim tried in a federal court [click here], or recovering compensatory damages (including pain and suffering damages) and possibly even punitive damages.

Practical Application Case Study: Lost Will Probate Proceeding vs. Tort Action:

I recently wrote here about Smith v. DeParry, a lost-will (codicil) case out of the 2d DCA demonstrating the specialized doctrines and procedures applicable only in probate proceedings. As the losing side in Smith v. DeParry learned, these specialized doctrines and procedures can produce harsh results. What if the losing side could simply call a "do over" after losing its lost-will case under the probate rules by  litigating the same case all over again as an interference-with-inheritance tort action? Is this possible? YES. In fact, that’s exactly what happened in Estate of Hatten, 880 So.2d 1271 (Fla. 3d DCA 2004), discussed as follows in Torts and Estates: Remedying Wrongful Interference with Inheritance:

In Hatten, decided in 2004 by a Florida appellate court, the plaintiffs alleged that immediately after the testator’s death, the defendant located and then destroyed the testator’s will. The defendant had a strong motive to do so. Under the will, the decedent was to inherit just one dollar, whereas if the decedent had died intestate, the defendant would receive $100,000.

In most states, a lost will that was not properly revoked by the testator is entitled to probate if its contents can be proved—for example, by a copy retained in the drafting lawyer’s files. In Florida, however, a statutory rule requires proof “by the testimony of two disinterested witnesses, or, if a correct copy is provided, … by one disinterested witness.” The plaintiffs in Hatten did not have such evidence. They had only their own testimony about what the testator had told them and what one of them recalled from reading the will. Because “the only available testimony would come from the three plaintiffs, all of whom are ‘interested’ under the terms of the Probate Code,” the court held that the statute foreclosed relief in probate

Plainly this statute reflects a legislative policy judgment, not unique to Florida, that interested testimony should be excluded categorically rather than left to the trier-of-fact for a case-by-case determination of credibility. Although the trend in the modern law of inheritance is to the contrary, the Florida statute is consistent with an older tradition of barring interested testimony in inheritance matters. To get around the statute, the plaintiffs sued in tort, and the court allowed the claim. The court reasoned that “relief is unavailable to [the plaintiffs] under the Probate Code.” But the court did not consider why relief was unavailable—namely, a specialized rule of evidence for inheritance disputes that rests on a principled (if contestable) policy choice to bar the plaintiff’s evidence. Commentators who have argued for the tort likewise praise its utility in circumventing inheritance law rules that limit interested testimony.

Lesson learned?

As noted by Prof’s Sitkoff and Goldberg, "we are in the midst of a massive intergenerational transfer of wealth," with the current estimate being that between 1998 and 2052, $41 trillion will be transferred in the U.S. alone [click here]. If you’re a working probate litigator you won’t stay competitive in this environment by doing things the way you’ve always done them. You constantly need to step up your game. One way to do that is read articles like Torts and Estates: Remedying Wrongful Interference with Inheritance.