In Florida we don’t have jury trials in will contests. But if you’re creative and the facts line up just right, your inheritance case could be decided by a jury if it’s framed as a “tortious interference with an expectancy” claim. The question then becomes, does it matter? Short answer: YES!
If you think of will contests as proxies for all forms of inheritance litigation, there’s plenty of data comparing the results of jury and non-jury trials in these cases. And that data paints a clear picture: the mechanisms we use to decide these disputes are systemically biased in favor of certain outcomes. As reported in Mediation and Jury Trials as Means of Resolving Will Contests, if you’re the plaintiff (i.e., the person contesting the will) your chances of success increase dramatically if your case is decided by a jury:
Research in Davidson County, Tennessee, where jury trials may be used as an alternative to judicial decision making, revealed that ten of twelve [83%] will contests before a judge were resolved in favor of the [defendant], but just seven of twelve [58%] before a jury were resolved in favor of the [defendant]. … In a nationwide study of will contests based on undue influence or lack of testamentary capacity whose appeals where reported from February 3, 1997 to January 27, 1998, it revealed that, when before a judge at the trial level, the [plaintiff] prevailed only five of twenty-two times [23%]; if the contestant went before a jury, the [plaintiff] prevailed six of eight times [75%] …
There are likely as many theories for why judges and juries decide these cases differently as there are lawyers. I don’t think it’s because jurors aren’t as smart, or because they’re more susceptible to bias, judges walk around with the same biases as everybody else.
In my opinion it has more to do with how lawyers and non-lawyers think about the world generally. Lawyers are trained to focus first on what’s the right “legal” answer, then on what’s “fair” for all concerned. For the rest of humanity this calculus is usually reversed. Not surprisingly, these contrasting world views produce different outcomes. Here’s how Prof. Chester, the author of the article and study quoted above, makes this point:
Although judges certainly bring discretion and equitable decision-making to bear when adjudicating will contests, they are still more conscious of preserving the law of the matter than are juries: juries may focus more on fair (natural) distribution of the estate than on preservation of a dead person’s (theoretical) intent. In addition, juries may not impose a stringent notion of what influence might be undue or what degree of mental weakness may rise to the level of incapacity. Instead, they may reason backward. Jurors may collectively feel that if a testator left property in an unnatural manner, he or she must have been crazy, or under undue influence, or both.
This may all sound good in theory, but does it hold up in practice? According to the following two Florida appellate opinions, the answer is clearly YES. In both juries decided the case one way (in favor of the contestant/plaintiff) and judges decided the same case the other way (in favor of the proponent/defendant).
Case Study #1: Mulvey v. Stephens, 250 So.3d 106 (Fla. 4th DCA June 27, 2018)
This case involved inheritance litigation between a decedent’s second wife and a daughter from his first marriage. The litigation took two forms. First a will contest (decided by a judge), then a tortious interference claim (decided by a jury).
Daughter lost her non-jury bench trial on the will contest. Daughter then sued again, this time filing a tortious interference lawsuit (daughter challenged a pre-death transfer of valuable real estate to second wife). By reframing her claim, daughter was now entitled to a jury trial.
The operative facts were the same in both lawsuits: according to the daughter, her father lacked capacity and was the victim of second wife’s undue influence both when he signed his will and when he made the contested property transfer. Does this raise estoppel issues? According to the 4th DCA, the answer is a definite maybe.
Here, we question whether [Florida law] permits the same parties to challenge the same purported tortious conduct in two separate actions, one in the probate court and one in the general civil division. But the Widow does not assert the probate court’s decision has preclusive effect on the subsequent civil action. Thus, for purposes of this appeal, we assume it does not.
So daughter got a second bite at the apple, this time before a jury. Did this make a difference? Of course, jury found in daughter’s favor. Second wife cried foul, seeking a directed verdict in her favor on the grounds that daughter had presented no evidence to support her tortious interference claim. The trial judge let the jury verdict stand. Undeterred, second wife appealed; and her luck was better with the judges at the 4th DCA. Daughter’s jury-trial win was reversed. Here’s why:
We review the court’s denial of a motion for [judgment notwithstanding the verdict (JNOV)] de novo. Alterra Healthcare Corp. v. Campbell, 78 So.3d 595, 601 (Fla. 2d DCA 2011). A JNOV is appropriate only when there is no evidence upon which the jury could rely in finding for the non-moving party. Id. …
Because there was no evidence of tortious conduct by the Widow, the Daughter could not prevail on her claim for tortious interference with expectancy. The trial court erred when it denied the Widow’s motion for judgment notwithstanding the verdict. Accordingly, we reverse the final judgment and remand with instructions to grant the Widow’s motion for judgment notwithstanding the verdict.
Case Study #2: Henry v. Jones, 202 So.3d 129 (Fla. 2d DCA October 14, 2016)
This case involved a brother suing his sister for tortious interference with an expectancy, claiming his sister had improperly diverted substantial sums of money from their mother’s account while acting as her caregiver. The case was put to a jury, which sided with the brother (another win for the challenger/plaintiff).
The trial judge stepped in and voided the jury’s verdict ruling it was “contrary to the manifest weight of the evidence,” and ordered a new trial. Brother appealed. And lost again. Here’s why:
Where a trial court orders a new trial, we review that decision under an abuse of discretion standard. Moore v. Gillett, 96 So.3d 933, 938 (Fla. 2d DCA 2012).
Moreover, “it takes a stronger showing of error in order to reverse an order granting a new trial than an order denying a new trial.” Thus we begin with the presumption that the trial court properly exercised its discretion, and we will not disturb the trial court’s ruling absent a clear abuse of that discretion. However, “such orders must nevertheless be supported by the record or by findings of influence outside the record.”
Id. at 938 (citation omitted) (first quoting Harris v. Grunow, 71 So.3d 186, 188 (Fla. 3d DCA 2011); and then quoting Reynolds v. Towne Mgmt. of Fla., Inc., 426 So.2d 1011, 1013 (Fla. 2d DCA 1983)). …
As noted above, we presume that the trial court’s exercise of discretion was proper absent a demonstration of a clear abuse of discretion, and a ruling “that is unsupported by the record constitutes a clear abuse of discretion.” Moore, 96 So.3d at 938. The record here supports the trial court’s conclusion that the verdict was contrary to the manifest weight of the evidence. We therefore affirm the order granting a new trial on that basis.
Are jury trials a good idea in inheritance cases? YES!
Tortious interference claims and the jury-trial rights they trigger should be pursued whenever possible. Not because jury trials are magic bullets; as demonstrated above, there’s always the risk that a jury’s equitable solution to what is in essence a family dispute can unravel on appeal or get voided by your trial-court judge. The prospect of a jury trial should be pursued because it helps resolve these cases where they should always get resolved: at mediation, by compromise. Here again from Prof. Chester, the author of the article and study quoted above:
I contend that mediated settlement of will contests works best where the right to a jury trial is preserved, giving contestants more leverage at the mediation stage. In mediation, what is a fair distribution of the estate in light of a particular family’s circumstances can be worked out by the parties. Attorneys representing the parties, who otherwise would become deeply involved in the case, can be relegated to a relatively minor role, such as approving a settlement after it is reached.
Wise words indeed.