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Probate Court Jurisdiction after Firestone v Galbreath

October 19, 2016, by Daniel McGowan, on Appellate Practice in Probate, Musings on the Practice of Law, New Probate & Trust Cases, Probate Law and Procedure |

An earlier blog discussed the open issues related to the Firestone case that were not addressed by the Court in its 1993 decision.  One of the unanswered questions was the focus of the Fourth District court in Roll v. Edwards which involved a garden variety will contest filed by the decedent's husband and son in the Ross County Probate Court challenging the validity of the decedent's will based on undue influence and lack of testamentary capacity.  They also included with their will contest a claim of intentional interference with expectancy of inheritance against the alleged undue influencer--in this case, the decedent's daughter.  In the probate action they requested that the probate court invalidate the will admitted to probate as well as enter a money judgment against the daughter. 

The husband and son also filed a separate intentional interference claim in the general jurisdiction division because they weren't certain as to whether the probate court had jurisdiction over their tort claim.  The claim filed in the general jurisdiction was dismissed because, in the court's view, the husband had relief available to him in the probate will contest action which, if successful, would make him whole.  Therefore, according to the general jurisdiction division court, husband and son first needed to exhaust the probate process.

The husband and son found more trouble over in the probate division where the probate court determined that because it lacked both exclusive and concurrent jurisdiction and plenary jurisdiction to hear the father and son's claim for intentional interference with an inheritance, the claim was similarly dismissed.  


While it makes common sense for a will contest and a claim for intentional interference with expectancy of inheritance to travel through the probate court process together, the district court of appeal said that the probate court can fully adjudicate the will contest without determining the essential elements of the tort action because the tort claim requires proof of elements that are not the same as the elements necessary for a prima facie will contest claim. The court feared that if both actions were allowed to proceed, plaintiffs could pursue both at the same time and potentially receive a double recovery.