What is the legal remedy when one person tortiously (wrongfully) interferes with another person’s estate planning so that an intended beneficiary receives either no or a lesser inheritance?  Since 2012 California has recognized the tort [i.e., a civil wrongdoing] of “Intentional Interference with Expected Inheritance” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1050-1056.). 

This tort applies when someone, “ ‘… by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he [or she] would otherwise have received is subject to liability to the other for loss of the inheritance or gift.’ ” (Beckwith v. Dahl, supra, 205 Cal.App.4th at p. 1050.)

On September 22, 2020, the California’s Third Appellate Department (Shasta) issued its appellate opinion in Louise A. Gomez v. Tammy J. Smith involving the Estate of Frank Gomez (deceased).  The decedent Frank’s daughter Tammy had prevented him from seeing his own attorney to review and sign a new trust in his death bed.  Tammy did not want her father to leave his new wife Louise a life estate in the father’s residence; it would have delayed Tammy’s own inheritance until Louise died.  After Frank died, his wife Louise sued his daughter Tammy.

To win, Louise had to prove each of these six elements:  (1) That she had an expectancy of an inheritance; (2) that the bequest or devise would have been in effect at the time of the death of the testator if there had been no such interference; (3) that the defendant had knowledge of the plaintiff’s expectancy of inheritance and took deliberate action to interfere with it; (4) that the interference involved underlying conduct that was itself wrong other than the fact of the interference; (5) that the interference resulted in damages (i.e., no or a lesser inheritance); (6) that the interference was directed at someone (Frank) other than the plaintiff (Louise).

Deciding the case involved a detailed facts and circumstances analysis.  Three of the six elements are easy to understand, but the second, third, and fourth elements deserve discussion. 

That is, Louise proved the second element because the bequest would have been in effect because had Tammy not prevented Frank’s attorney from seeing him at his deathbed then Frank would have signed a new trust giving Louise lifetime benefits.  Tammy would then have had to prove that Frank lacked capacity or was subject to undue influence to overcome the presumption of the trust’s validity. 

Next, Louise proved the third element because Tammy knew of Frank’s intention to take care of Louise and Tammy deliberately interfered by preventing Frank’s attorney from entering into the residence to have Frank sign the documents.  

Lastly, let’s discuss the fourth element that the underlying conduct was wrong in itself.  The Court’s opinion said that, “[t]he usual case is that in which the third person has been induced to make or not to make a bequest or a gift by fraud, duress, defamation or tortious abuse of fiduciary duty, or has forged, altered or suppressed a will or a document making a gift.  Thus one who by legitimate means merely persuades a person to disinherit a child and to leave the estate to the persuader instead is not liable to the child.” (Rest.2d Torts, § 774B, com. c, pp. 58-59.)

Here the Court found that,  “Tammy indisputably ‘knew of [Frank’s] physical weakness and distress and took actions whereby [she] physically separated [his] attorney from [him] intentionally preventing [Frank] from confirming an estate plan that he had been trying to put in place for months.’ Frank’s will was overborne by Tammy because he was bedridden and unable to intervene when Tammy precluded [Frank’s attorney] Aanestad from entering the home.”

Deathbed estate planning is fraught with risk.  It becomes even riskier with deep family divisions that sometimes exist in second marriages between step children and step parents.  It is even more important not to wait to get one’s affairs in order.

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.