Briggs v. Briggs (In re Certification of Court), 28647

• Court: Supreme Court of South Dakota
• Writing for the Court: JENSEN, Justice
• Parties: In the MATTER OF the CERTIFICATION OF a QUESTION OF LAW FROM the UNITED STATES DISTRICT COURT, DISTRICT OF SOUTH DAKOTA, SOUTHERN DIVISION, Pursuant to the Provisions of SDCL 15-24A-1, and Concerning Federal Action Civ. 4:17-cv-04167-KES, Titled as Follows: Thomas Briggs, Plaintiff, v. Judith Briggs, Defendant.
• Docket Number: 28647
• Decision Date: 02 July 2019

931 N.W.2d 510

In the MATTER OF the CERTIFICATION OF a QUESTION OF LAW FROM the UNITED STATES DISTRICT COURT, DISTRICT OF SOUTH DAKOTA, SOUTHERN DIVISION, Pursuant to the Provisions of SDCL 15-24A-1, and Concerning Federal Action Civ. 4:17-cv-04167-KES, Titled as Follows:

Thomas Briggs, Plaintiff,
v.
Judith Briggs, Defendant.

28647

Supreme Court of South Dakota.

ARGUED ON NOVEMBER 13, 2018
OPINION FILED July 2, 2019

DANIEL R. FRITZ, II, MARY A. AKKERMAN, TIMOTHY R. RAHN of Ballard Spahr LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and non-moving party.

PAUL T. VAN OLSON, SHEILA S. WOODWARD of Marlow, Woodward & Huff, Prof. LLC, Yankton, South Dakota, Attorneys for defendant and moving party.

JENSEN, Justice

931 N.W.2d 511

[¶1.] On December 8, 2017, Thomas Briggs filed a complaint against his sister, Judith Briggs, in the United States District Court for the District of South Dakota, alleging claims for tortious interference with inheritance or expectancy of inheritance, breach of fiduciary duty, and negligence. The district court dismissed the claims for breach of fiduciary duty and negligence. The district court then certified the following question to this Court on the remaining cause of action.

Whether South Dakota recognizes tortious interference with inheritance or expectancy of inheritance.

¶2.] In answer to the certified question from the district court, we decline to recognize a cause of action for tortious interference with inheritance or expectancy of inheritance.

Background

[¶3.] Thomas’s federal complaint alleges that Thomas and Judith’s parents, Elizabeth and Willard Briggs, each created a revocable living trust and will in 1995. Thomas attached a copy of Willard’s trust to the complaint showing he and Judith were treated equally as beneficiaries, and he alleges on information and belief that he was also named as an equal beneficiary in Elizabeth’s trust and will. Further demonstrating Willard’s and Elizabeth’s benevolent intent toward their children, Thomas alleges his parents deeded land they owned in Illinois to Thomas and Judith in equal shares, subject to a retained life estate.

[¶4.] In 1995, Willard gifted Judith approximately 395 acres of South Dakota agricultural land to assist her as she started in the farming and ranching business. Thomas did not receive a similar gift. Thomas alleges that Elizabeth and Willard always intended their estate planning to include a later distribution to him to equalize the gift to Judith.

[¶5.] In 1997, Willard passed away, and Elizabeth became trustee of Willard’s trust. According to Thomas’s federal complaint, as Elizabeth’s health declined, Judith developed a confidential relationship with her and became her primary caretaker. Thomas further claims Judith began isolating Elizabeth from others and began to control Elizabeth’s personal and financial decisions. He identified that he last spoke to Elizabeth in 2006.

[¶6.] Thomas alleges Elizabeth amended her trust on January 16, 2009, despite her declining health, and removed Thomas as a beneficiary. She amended the trust a second time on January 3, 2012, removing Thomas’s daughter as a beneficiary. Elizabeth passed away on July 16, 2013. Thomas claims that he was unable to participate in the funeral services because Judith failed to inform him of Elizabeth’s passing. He further claims he first learned of Elizabeth’s death on approximately August 15, 2013, when he received a letter from Elizabeth’s attorney explaining that Elizabeth had died and prior to her death had disinherited him. This letter also provided Thomas with notice of the time allowed for commencing judicial proceedings under SDCL 55-4-57(a)(2).¹

[931 N.W.2d 512

[¶7.] More than eighteen months after Elizabeth’s death, Thomas filed a petition in state circuit court challenging the trust amendments. He argued the amendments were invalid because Elizabeth lacked testamentary capacity and was unduly influenced by Judith who was a beneficiary and trustee. In particular, he asserted Elizabeth was unable to read either of the amended trusts when she signed them at ages 89 and 92, respectively, due to her poor eyesight. Thomas also alleged that Judith breached her fiduciary duties as trustee; however, Thomas did not name Judith as a party defendant or commence an action against her in her individual capacity.

¶8.] After the circuit court dismissed Thomas’s petition as untimely under SDCL 55-4-57(a), Thomas appealed to this Court. We affirmed, determining that the petition was time barred. See In re Elizabeth A. Briggs Revocable Living Trust (Briggs I ), 2017 S.D. 40, ¶ 13, 898 N.W.2d 465, 471. We also held that the circuit court lacked in personam jurisdiction to review the claim that Judith breached her fiduciary duty because Thomas did not commence the action against Judith in her individual capacity or move to join her as a party defendant. Id. ¶ 14. Thomas subsequently filed the complaint pending before the federal district court, alleging, among other claims, a claim for tortious interference with inheritance or expected inheritance.

Decision

[¶9.] Tortious interference with inheritance, or at least a version of it, was recognized in Georgia in 1915. Mitchell v. Langley , 143 Ga. 827, 85 S.E. 1050, 1053 (1915). However, most cases discussing the tort arose after the Restatement (Second) of Torts recognized the cause of action in 1979. Restatement (Second) of Torts § 774B (1979). The Restatement explains the tort 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 to the other for loss of the inheritance or gift." Id. Unlike probate challenges, the tort exists between the intended beneficiary and the alleged tortfeasor outside of the decedent’s estate.

Id. cmt. c. See In re Meyer’s Estate , 69 S.D. 339, 341, 10 N.W.2d 516, 517 (1943) (indicating that a will dispute is in the interest of the estate).

[¶10.] Generally, the tort requires proof of five elements: "(1) the existence of an expectancy; (2) defendant’s intentional interference with the expectancy; (3) conduct that is tortious in itself, such as fraud, duress, or undue influence; (4) a reasonable certainty that the expectancy would have been realized but for the interference; and (5) damages." In re Estate of Ellis , 236 Ill.2d 45, 337 Ill.Dec. 678, 923 N.E.2d 237, 241 (2009) ; accord Firestone v. Galbreath , 67 Ohio St.3d 87, 616 N.E.2d 202, 203 (1993). The tort allows for damages in the form of compensation from the wrongdoer for the loss of an expected inheritance and punitive damages to punish the wrongdoer for the tortious conduct. Restatement (Second) of Torts § 774B (1979).

[¶11.] In response to the district court’s certified question, Thomas urges us to adopt a cause of action for tortious interference of inheritance or expected inheritance. As support, he cites cases from other jurisdictions that have adopted the tort. Judith maintains the tort is unnecessary. She argues that existing South Dakota law provides an adequate remedy for any of the wrongs asserted by Thomas. She also

[931 N.W.2d 513

directs this Court to numerous cases refusing to adopt the tort.

¶12.] The cases cited by Thomas and Judith reflect abundant law on the issue—including the reasons for and against adopting the tort. Many of those decisions have been issued by intermediate appellate courts or by federal courts applying state law and, at times, produce inconsistent results, even within the same jurisdiction. Compare In re Estate of Legeas , 210 Cal.App.3d 385, 258 Cal. Rptr. 858 (1989) (recognizing the tort), with Jones v. Welchner , No. H029511, 2007 WL 2751429 (Cal. Ct. App. Sept. 21, 2007) (declining to recognize the tort). Compare Bocian v. Bank of America , No. CV064019877, 2006 WL 3759305 (Conn. Super. Ct. Dec. 6, 2008) (recognizing the tort), with Moore v. Brower , No. X10UWYCV054010227, 2006 WL 2130385 (Conn. Super. Ct. June 14, 2006) (declining to recognize the tort). Compare In re Green , No. 173335, 1996 WL 33360648 (Mich. Ct. App. Aug. 16, 1996) (recognizing the tort), with Dickshott v. Angelocci , No. 241722, 2004 WL 1366001 (Mich. Ct. App. June 17, 2004) (declining to follow In re Green as not binding and not persuasive).

[¶13.] We, therefore, focus on jurisdictions with decisions from the state’s highest court. Our review shows that only a small number of the highest courts in other states have adopted the tort without qualification or limitation.² These courts allow the claim to proceed regardless of other available remedies so long as the plaintiff has sufficiently pleaded the requisite elements. According to the Iowa Supreme Court, the tort is "an independent cause of action for the wrongful interference with a bequest[.]" Frohwein v. Haesemeyer , 264 N.W.2d 792, 795 (Iowa 1978) ; accord Barone v. Barone , 170 W.Va. 407, 294 S.E.2d 260, 264 (1982). Maine likewise treats the tort independently from a will or trust dispute, and in fact, allows a cause of action "even before the testator has died." Plimpton v. Gerrard , 668 A.2d 882, 886 (Me. 1995). Notably, the Oregon Supreme Court remarked that "[a] tort claim does not become a will contest simply because it arises out of facts relating to the making or unmaking of a will." Allen v. Hall , 328 Or. 276, 974 P.2d 199, 204 (1999) (en...