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Intentional Interference With an Expectancy of Inheritance

October 18, 2016, by Daniel McGowan, on Appellate Practice in Probate, New Probate & Trust Cases, Probate Law and Procedure |

This tort, recognized in Ohio since the 1993 Supreme Court decision in Firestone v. Galbreath, has undergone significant development over the years.  However, many of the original questions raised by the Firestone opinion remain unsettled among district probate courts in Ohio.  

In Firestone the Ohio Supreme Court was asked two certified questions from the Sixth Circuit Court of Appeals: (1) Is Intentional Interference with expectancy of an inheritance a cognizable claim under Ohio law; (2) If so, who has standing to commence such an action at law?

The Court answered in the affirmative regarding the existence of a cause of action in Ohio for intentional interference with an expectancy of an inheritance and defined the elements of the tort as follows:  (1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional interference by a defendant with that expectancy of inheritance; (3) conduct by the defendant involving the interference which is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty that the expectancy of inheritance would have been realized, but for the interference by the defendant; and (5) damage resulting from the interference. 

Unfortunately, there are a number of unanswered questions that the Court chose not to address.  These include the following: (1) Is a Plaintiff required to commence and ultimately prevail in a will contest action as a necessary precondition to filing a tort action; (2) since a will contest and the tort action involve the same factual transaction, shouldn't the probate court hear both of them simultaneously as related issues; (3) the nature and extent of the probate court's jurisdiction to award money damages. 

To read more about this tort and other issues in Ohio probate, click here.