DISAPPOINTED HEIR: GOING BEYOND THE PROBATE PROCESS TO REMEDY WRONGDOING OR RECTIFY MISTAKE, THE

Real Property, Probate and Trust Journal, Summer 2004 by Fried, Martin L

Editors' Synopsis: This Article focuses on how disappointed heirs can seek relief and remedy mistakes in a will outside of the probate process. The author begins the Article with a review of the traditional approach to contesting a will within the probate process. The author then reviews alternative causes of action for disappointed heirs. Possible alternatives for seeking relief include a cause of action for the tort of intentional interference with an inheritance or gift or the imposition of a constructive trust. A disappointed heir also may choose to bring a malpractice action against the drafting attorney. The author concludes the Article with a discussion of how more liberal approaches in determining the validity of wills and modifying donative documents will provide claimants with another viable alternative when seeking relief as a disappointed heir.

I. INTRODUCTION

A 1966 Playboy cartoon depicts a will reading with the lawyer stating: "And to my faithful valet, Sidney, who I promised to remember in my will-Hi there, Sidney!"1 Does Sidney have any reason to believe that he might be a beneficiary under his late employer's will? Perhaps. Does Sidney have any claim against the employer's estate other than for unpaid compensation? Probably not, in the absence of an enforceable will contract.2

Suppose, however, that the disappointed beneficiary is not the decedent's valet, but rather an intestate distributee of the decedent or a person named in a prior will whose share is diminished by the will in question. Suppose further that a son and daughter survive the decedent. The decedent's earlier will treated the two equally by giving each child one-half of the estate. The will offered for probate changes the dispositive scheme and leaves three-quarters of the estate to the daughter and one-quarter to the son. The son claims that the daughter used fraud and undue influence to induce their parent, an aged and infirm individual, to change the will. What recourse does the son have to recover what he deems to be rightfully his-one-half of the estate?

The traditional approach is to object to the will offered for probate based upon the alleged conduct of the daughter.3 If the son is successful (and he bears the burden of persuasion on the issues of fraud and undue influence),4 the probate court should deny probate of the later will and the siblings should share the estate, either under the terms of the prior instrument or through intestacy if the prior will is not admitted for probate.5 That would seem to make the son whole, but it does not. If, as is often the case when a will is procured by wrongful means, the daughter is the nominated executor and proponent of the will, the estate will bear the cost of defending the son's claim, including attorney's fees,6 which will decrease the son's ultimate recovery. Additionally, the son will be responsible for the payment of his attorney's fees.7

The son may have an alternate course by which to achieve the desired result. He can pursue a remedy based on the tort of intentional interference with an inheritance.8 By proceeding against his sister on the tort claim, the son could seek the entire range of damages available in tort actions, including, in a proper case, consequential and punitive damages.9 A second possibility would be for the son to pursue an equitable action to impose a constructive trust on the property received by the daughter on the ground that she had been unjustly enriched by her actions.10 In either case, the cost of defending the proceeding would shift from the estate to the daughter.11

The son-daughter scenario described above centers on conduct affecting a will. Normally, the probate court is charged with resolving this type of dispute. But access to the probate court for relief may not be possible if the disappointed heir does not have standing to contest the will or if the interference does not affect the terms of a will.12

Part II of this Article explores the problems a potential claimant might encounter in seeking relief within the probate process. Parts III through V move outside the probate court to focus on other courses of action and potential remedies available to the claimant. Part III discusses a claimant's attempts to seek relief through the tort of intentional interference with an inheritance or gift or the imposition of a constructive trust. Part IV looks at situations in which an action in malpractice against an attorney might provide the claimant with an avenue for relief. Part V looks at whether new approaches in determining the validity of wills and more liberal rules regarding reformation and modification of donative documents can be a means by which a court can grant appropriate relief.

II. PROBLEMS IN seeKING RELIEF IN THE PROBATE PROCESS

If the alleged wrongdoing centers around a will, the traditional route to relief for a person claiming to be injured is a will contest conducted in the court vested with probate jurisdiction. Whether the probate proceeding is initially ex parte or in solemn form,13 the ultimate questions for the court after contestants file their objections are whether (1) the testator duly executed the will, (2) the testator possessed the requisite testamentary capacity, and (3) the testator's testamentary expression was a free act of the testator and not the product of fraud, duress, or undue influence.14 If the court is satisfied that all the elements of a valid will are present, a disappointed person can do little more in the probate court; testators are free to dispose of their property as they see fit,15 subject to any rights a surviving spouse or minor children may possess.16 However, even if one or more infirmities affect the validity of the will, a number of roadblocks may still stand in the way of a claimant.