SUBSTANTIVE LAW IN WILL CONTESTS AND CITATION PROCEEDINGS – PART 3
Intentional Interference with a Testamentary Expectancy.
Sometimes actions which improperly change a testamentary plan cannot be undone even by a successful contest of a will or trust. For example, assume that a good friend of a decedent was made beneficiary of a payable upon death account and was not named in the decedent’s will. The money was then wrongfully transferred from the POD account to an account in joint tenancy with the wrongdoer. Probate will not afford a remedy. If the joint tenancy account is found to have been established because of undue influence or a breach of fiduciary duty, the result will be to bring the assets into the decedent’s estate, and the friend will still receive nothing. There are numerous variations of this theme that lead to a similar result. See, e.g., the Estate Department article entitled The Saga of the Undertaker’s Family – Part 1.
In 1981, the Illinois Supreme Court acknowledged the wrong that was being done in such circumstances and recognized the tort of intentional interference with a testamentary expectancy in Nemeth v Banhalmi, 99 Ill.App.3d 493, 425 N.E.2d 1187, 55 Ill.Dec. 14 (1st Dist 1981) (Nemeth I). The elements of the tort as developed over time are now best set forth in the Illinois Pattern Jury Instructions beginning with IPI No. 205.01, which states in part as follows:
The issues to be decided by you under [Count ] of plaintiff’s complaint are as follows:
 The plaintiff claims that he had an expectation that he would receive an inheritance from the decedent upon the decedent’s death;
 The plaintiff further claims that the defendant, through [fraud][duress,][or][undue influence], intentionally interfered with plaintiff’s expectation in one or more of the following ways:
[Set forth in simple form, without undue emphasis or repetition, those alleged grounds of intentional interference which are supported by the evidence.]
 The plaintiff further claims that there was a reasonable certainty that the plaintiff’s expectancy would have been realized but for the defendant’s interference;
 The plaintiff further claims that he has suffered damages as a result of the loss of inheritance.
The existence of the testamentary expectancy may be by will, by trust, by operation of law, or otherwise, so long as the benefit in question would have passed to the plaintiff in the absence of the tortious actions of the defendant. Nemeth specifically referred to acts such as fraud, duress, or undue influence. The acts complained of must be “tortious” and intentional by the defendant. Acts which do not rise to that level are insufficient to meet that element of the tort. Extra generosity and kindness, for example, are by themselves not tortious without some further actions improperly influencing the decedent to favor the defendant to the detriment of the plaintiff. Finally, the damages to plaintiff must be other than those that can be obtained via Probate proceedings.
As with the causes of actions set forth in the prior two articles, the facts are key in each case, but the evidentiary rules are somewhat different. In similar manner as trust contests, the Dead-Man’s Act will not apply unless an estate is a party defendant because it received assets which the plaintiff claims.
An action claiming intentional interference with a testamentary expectancy is not exactly in the same category with a will or trust contest. It does not attempt to challenge the terms of the operative document. However, it does share some similarities with those contests and with Citation proceedings, since the goal of all of the actions is to redirect assets of a decedent to where they should have gone before actions by a third party directed them somewhere else. As such, this action should be kept in mind whenever the Probate remedies or direct contests fail.
©2005 by Cary A. Lind, all rights reserved.