Tortious interference of a testamentary expectancy

Tortious interference of a testamentary expectancy is a “tort” or a wrongful act that causes economic harm to another person, and allows for compensatory and punitive damages.

The plaintiff must prove the following elements to establish a claim for the Tort of Intentional Interference with Expectancy:

  1. decedent had a fixed intention to leave a portion of his or her estate to the plaintiff and
  2. strong probability existed that the decedent would have carried out his or her intention but for the wrongful acts of the defendant, whose interference must have been intentional

In Florida, a claim for tortious interference of a testamentary expectancy is not generally permitted to be filed outside a probate case.  A few Florida courts have found that there are exceptions to this rule and that the probate court is the proper place unless circumstances in the probate precluded the issue from being raised in the probate.

What does this mean?  If a person wishes to file a separate action for Tortious interference of a testamentary expectancy they must not have received formal notice of the probate proceeding.

The 3rd DCA held that a party is prohibited from bringing a separate action for Tortious interference of a testamentary expectancy if they failed to raise the issue in the probate proceeding.   The 4th DCA recently held a separate action could be brought when there were circumstances that precluded it being raised in the probate court.

Constructive knowledge or actual knowledge of the probate is not sufficient, to preclude the individual from filing a separate action, they must have received formal notice, when a beneficiary has not joined the petition or signed a waiver..

The Probate Code provides that “`formal notice’ means a form of notice that is described in and served by a method of service  5.040(a) of the Florida Probate Rules.” § 731.201(18), Fla. Stat. (2013). Rule  5.040(a) provides for a copy of the document to be sent, together with a notice requiring the person served to serve written defenses within 20 days after service of the notice, and “notifying the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded in the pleading or motion, without further notice.” Fla. Prob. R. 5.040(a)(1).

The rule also provides that the “formal notice” is accomplished through service of process or “by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt.” Fla. Prob. R. 5.040(a)(3). Importantly, for purposes of this case, the rule states that “proof of service shall be by verified statement of the person giving the notice; and there shall be attached to the verified statement the signed receipt or other evidence satisfactory to the court that delivery was made to the addressee or the addressee’s agent.” Fla. Prob. R. 5.040(a)(4).

The Bottom line is that if you feel there is a claim of tortious interference of a testamentary expectancy, you should try to address it in the probate case as it may be difficult to address it outside of probate.   Likewise, if you think someone may file a claim for tortious interference of a testamentary expectancy, be sure and send them formal notice in the probate case even if they are not a beneficiary of the estate.

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