Crain’s Cleveland | Do you suspect wrongful doing behind a change in a will or trust?
April 3, 2018 • 4 min read
April 03, 2018
By DAVID L. DRECHSLER, BUCKINGHAM, DOOLITTLE & BURROUGHS LLC
What should you do if you suspect a will, trust or other beneficiary designation was changed due to fraud, duress, incompetence or undue influence? Under Ohio law, you can challenge the validity of the document if you believe it was improperly rewritten. These can be emotionally challenging and cause difficult times, and the last thing you may want to do is go to court. That may be the only way to redress the aggrieved.
These claims generally appear in probate court where the documents would be reviewed and considered as to whether or not they are invalid. If so, the probate court would revert the documents back to the previous state. However, in Ohio, the aggrieved may have an additional option to redress the wrongdoing: a claim of Intentional Interference with an Expectancy of an Inheritance.
One key difference between an action to invalidate the bequest and to claim Intentional Interference is that the person who caused the change is individually sued in Intentional Interference and if a plaintiff prevails, the sued party must pay damages. Such a claim entitles the claimant to a jury. While a jury may be available for a claim to invalidate an improper bequest, in many situations it is left to the discretion of a probate judge who would normally disallow it.
WHO CAN BRING A CLAIM?
In order for a person to have standing to bring such a claim, he must have had an expectancy that he would have otherwise received assets prior to the wrongful change. For example, if somebody is taken out of a will, that person would have an expectancy of an inheritance. The same would hold true for a person who is removed as a beneficiary from a trust. There can also be an expectancy of an inheritance to a person named in a trust, but the assets are improperly removed from the trust.
Some courts require the claimant to appear before and finalize a probate court hearing before allowing an Intentional Interference claim. For example, if the basis is an improper change to a will, you would first seek to have the document reverted in probate court and then file a claim for Intentional Interference against the party(s) who caused the change. This is not true in all cases and is dependent upon the facts of the case.
WHAT DOES ‘INTENTIONAL’ INTERFERENCE REQUIRE?
The word “intentional” in the title means that the act from which the claim is made against must be an intentional act. It is defined as one who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability of the other for loss of the inheritance or gift. It cannot be negligent or even reckless.
A claimant must prove that through the defendant’s intentional conduct to improperly make the change, damage occurred. If, for example, the cause was due to a lack of capacity to make the change, a claim for Intentional Interference cannot be brought but the bequest can still be set aside or invalidated. The underlying claim must be one of fraud, duress or undue influence. The act becomes undue or improper when it deprives a person of the freedom of choice or substitutes another person’s choice or desire for that of the person’s own.
WHAT IS REASONABLE CERTAINTY?
Courts require that there be reasonable certainty of an expectancy but for the interference. This “but for” causation essentially means that a claimant must prove that he would have received the inheritance or gift but for the wrongful conduct. Actual loss of the gift is required. It is not necessary to show complete certainty, only reasonable certainty. Courts generally require a higher degree of probability that the benefactor would have made the legacy if not for the wrongful conduct.
WHAT DAMAGES COULD A CLAIMANT BE ENTITLED TO?
Damages typically consist of the value of the property the plaintiff would have received had the interference not occurred. Damages are sought from the defendants directly. The clearest example of damages would be if a plaintiff would have received $100,000 under a trust, but, through wrongful conduct, the trust was revoked. Should the plaintiff prevail, he or she would be entitled to damages in the amount of $100,000 directly from the defendant who is responsible for the revocation. Because the act is intentional, the plaintiff may also be entitled to punitive or additional damages. It depends on the degree of malice or ill will whether or not that would be allowed. However, a jury could be instructed to award punitive damages if a high level of intent (establishing malice) is found. Moreover, because it is an intentionally wrongful act, the claimant may also be entitled to reimbursement of attorney fees.
The claim of Intentional Interference with an Expectancy of an Inheritance brings an additional option to an aggrieved claimant. Should you or someone you know be in a situation of disinheritance and believe that it was a result of improper conduct, it is advisable to consult with a qualified attorney to determine what rights you have and whether you should consider the Intentional Interference claim in addition to or instead of the more often seen will or trust contests or other claims to invalidate a bequest or instrument.
David L. Drechsler is office partner-in-charge of the Cleveland office of Buckingham, Doolittle & Burroughs LLC
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