Tortious interference does not only apply to valid business expectancies, but also to an inheritance expectancy. In order to make a case for tortious interference with an inheritance expectancy, you have to plead and prove that a third-party, by fraud, duress, undue influence or other tortious means, intentionally prevented you from receiving an inheritance from the decedent, which inheritance or gift you would have otherwise received. Hammons v. Eisert, 745 S.W.2d 253, 257 (Mo. Ct. App. 1988). This type of claim, however, is severely limited and can only be used if several conditions are met.
Tortious interference with an inheritance expectancy is a claim of last resort and cannot be lodged in lieu of a traditional will or trust contest in probate court. With respect to wills, once a will has been admitted to probate but the plaintiff consciously chooses to file an action for tortious interference with inheritance expectancy rather than a will contest, a tortious interference action cannot be maintained. McMullin v. Borgers, 761 S.W.2d 718, 719-720 (Mo. Ct. App. 1988). In other words, as opposed to filing the claim directly against the wrongdoer for money damages, you have to follow the normal will contest procedures in the applicable probate court. Id. The McMullin court gave three reasons for this rule. First, “[w]here the alleged tort involves superseding one will with another, such an action would offend the probate code by requiring both the effective revocation of an accepted will and the probate of a rejected will.” Id. at 719. Second, “[a]llowing an action for tortious interference in a situation such as this would merely encourage plaintiffs to forego the proper remedy of a will contest based on undue influence for the more lucrative damage options available in a tort action.” Id. at 720. Third, under such circumstances a successful will contest “provides essentially the same remedy and prevents any additional damages.” Id. This rule also applies to trusts. Thus, the law requires that a petition to set aside a trust be pursued before any tortious interference claims. Brandin v. Brandin 918 S.W.2d 835 (Mo. Ct. App. 1996).
Based on these cases, one first needs to pursue a will or trust contest before entertaining a tortious interference claim. If the contest is successful, you cannot make the tortious interference claim because it would result in duplicative remedies (i.e., the instrument being voided and you be awarded money damages). If the contest is unsuccessful, you can make the tortious interference claim. As a practical matter, however, if the will or trust contest is unsuccessful — especially for lack of persuasive evidence — then it would necessarily be difficult to prevail on tortious interference in an independent case because the claim will presumably be based on the same/similar facts. Accordingly, while tortous interference with inheritance right is a relatively newer claim in Missouri and provides another avenue of relief, it is not always applicable or appropriate.
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