A potential beneficiary of an estate, a trust, a retirement account or life insurance policy may have a recourse against a wrongdoer who interfered with the beneficiary’s expected inheritance. In most jurisdictions, the aggrieved party may sue for intentional interference with inheritance (IIWI), but to maintain a claim successfully, the plaintiff must meet certain requirements.

Historically, a bequest in a will wrongfully procured by coercion, duress, or undue influence could be set aside if a contestant was able to establish the testator’s free will was overtaken by the perpetrator. A will contest based on undue influence would normally be asserted when the executor of an estate sought to probate the will of the deceased. Wills are normally probated in the probate courts of a state. The probate process requires a will to be submitted to the probate court to prove that the will is valid, and for the estate then to be valued and distributed to the appropriate beneficiaries. Interested parties have standing to contest a will and to submit a different will for probate. 

Over recent decades, courts have increasingly accepted a claim based upon tort law for recovery of damages from the wrongdoer for intentional interference with an expectation of receiving a gift or inheritance. To establish liability, a plaintiff must establish they had an expectation of receiving an inheritance and the defendant interfered with that expectation by committing fraud or some other wrongful conduct, such as undue influence, duress, or defamation, causing the donor not to leave a bequest to the plaintiff. Importantly, the burden on a plaintiff pursuing a claim for IIWI is to prove his or her case by a “preponderance of the evidence,” meaning that the plaintiff must prove that it is more likely than not that the elements of IIWI are present. This is a lower burden than the one applied in an action seeking to invalidate an amendment to a will or trust.

The viability of a claim for IIWI varies significantly by jurisdiction. Some states do not recognize such a claim, but nonetheless allow a similar action for intentional interference with economic relations. Still other states have not yet considered whether to recognize such a claim. Only a handful of states arguably do not currently allow a claim for IIWI.

If a disgruntled beneficiary can obtain relief through a will contest, then the beneficiary typically must pursue the will contest before seeking to recover for IIWI. By contesting a will when it is submitted to probate, a potential IIWI claimant may be able to receive the same relief they would obtain by suing a wrongdoer for IIWI. Many courts hold that if a will contest provides a contestant an “adequate remedy,” then the claimant may not bring an action based on the tort of IIWI. State law varies with respect to the test applied to determine whether an adequate remedy at probate exists. Some courts have held that an adequate remedy exists at probate only if the same relief sought in the IIWI claim is available through a will contest in probate court.

In many instances, a will contest will not provide adequate relief and a contestant will have a strong argument that he or she should be allowed to pursue a claim for IIWI without contesting, or after contesting, the will. For example, if the contestant is seeking assets that are not passing in the will, then a will contest in probate court would afford them no relief. For example, if the contestant claims that he or she should be the beneficiary of an IRA or life insurance policy, those proceeds are considered non-probate, and if a wrongdoer interfered with the contestant’s expectation of being a beneficiary, then the contestant should not be required to contest the will of the deceased before pursuing a claim for IIWI. Similarly, many high wealth individuals use trusts, rather than wills, to convey their assets. Trusts do not go through the probate process and so a will contest again would not provide adequate relief.

In short, an IIWI claim is available in many states to a person who believes a wrongdoer interfered with the person’s expectation of receiving a gift, a bequest in a will or trust, or through an IRA or life insurance. It is important to consult with experienced counsel to evaluate whether such a claim is supported in the jurisdiction.