Geduldig v. Posner, 497

• Citation: 129 Md. App. 490,743 A.2d 247
• Decision Date: 29 December 1999
• Docket Number: No. 497,497
• Parties: Judith A. GEDULDIG, et al. v. David B. POSNER, et al.
• Court: Court of Special Appeals of Maryland

743 A.2d 247

129 Md. App. 490

Judith A. GEDULDIG, et al. v. David B. POSNER, et al.

No. 497, Sept. Term, 1999.

Court of Special Appeals of Maryland.

December 29, 1999.

Kurt J. Fischer (Shale D. Stiller, Brett Ingerman and Piper & Marbury L.L.P. on the brief), Baltimore, for appellants.

Peter E. Keith (Gallagher, Evelius & Jones, LLP, Baltimore, E. Pete Summerfield, Alan H. Silverberg and Summerfield, Willen, Silverberg & Limsky, P.A., Owings Mills, on the brief), for appellees.

Argued before SALMON, EYLER, and SONNER, JJ.

EYLER, Judge.

In these two consolidated actions, based on claims of undue influence and fraud, claimants seek to (1) set aside a will and a revocable trust, (2) impose a constructive trust, and (3) be awarded compensatory and punitive damages. The question is whether the evidence is legally sufficient to create a fact question and thereby avoid summary judgment in favor of the defendants. We answer that question in the affirmative and, consequently, reverse the judgment of the circuit court. For the benefit of the court on remand, we shall discuss whether Maryland recognizes the tort of intentional interference with expected inheritance and shall conclude that the tort is not available on the facts of these cases.

Introduction

Nathan Posner and Rose Posner (Ms. Posner) were married and had three children: David P. Posner (Dr. Posner), appellee, Judith A. Geduldig (Ms. Geduldig), and Carol Jean Posner Gordon (Dr. Gordon), appellants. Nathan Posner died testate, but the terms of his will are not relevant except to observe that it contained a marital trust ("marital trust").

Ms. Posner died on October 28, 1996, leaving a will and revocable trust, both dated January 3, 1996. In the will,¹ she (1) expressly revoked "all" prior wills, (2) named Dr. Posner as personal representative of her estate, (3) bequeathed a picture to Dr. Gordon, (4) bequeathed $100 to Ms. Geduldig, and (5) bequeathed the residue of her estate, including the marital trust assets pursuant to a power of appointment, to Dr. Posner as trustee of the revocable trust. In the revocable trust, in pertinent part, Ms. Posner provided that, upon her death, the assets would be distributed as follows: (1) $2,500,000 to Dr. Posner, (2) $80,000 to his spouse, (3) $2,500,000 to certain named charitable organizations, (4) $100,000 in trust for the benefit of Ruth Browne, Ms. Posner's sister, (5) $10,000 to Ms. Posner's friends, Barry Webb and Zoe Webb, (6) $1,000,000 in trust for the benefit of Dr. Posner's children, (7) $100 to Dr. Gordon, (8) $100 to Ms. Geduldig, and (9) the residue to Dr. Posner, including the balance of funds, if any, in the trust, for Ms. Browne and Dr. Posner's children after compliance with the terms of the trusts.

Ms. Geduldig and Dr. Gordon took the position that Ms. Posner did not have a testamentary power of appointment with respect to the marital trust. They filed a declaratory judgment action in the Circuit Court for Baltimore County, and the circuit court agreed. The case came to this Court on appeal, and we held that Nathan Posner's will did not grant Ms. Posner a testamentary power of appointment over the assets of the marital trust. Consequently, we affirmed the judgment of the circuit court. Posner v. McDonagh, No. 1574, September Term, 1997 (filed March 11, 1999). The effect of that ruling, according to a pleading in the record before us, was that the assets in the marital trust passed under Nathan Posner's will, in equal shares, to the three children.

On December 24, 1996, Dr. Gordon and Ms. Geduldig filed a petition for caveat in the Circuit Court for Baltimore County, alleging that Ms. Posner's will, with respect to bequests to Dr. Posner, was the product of undue influence and fraud exercised by Dr. Posner. On July 1, 1997, the Orphans Court transferred the case to the Circuit Court for Baltimore County.

On April 28, 1998, Dr. Gordon and Ms. Geduldig filed a complaint in the Circuit Court for Baltimore County against Dr. Posner, his spouse, Nancy Posner, their four children, Jonathan, Melissa, Stephen, and Aleza Posner, and Ruth Browne (additional appellees, hereinafter collectively "Dr. Posner"), seeking a declaratory judgment that Dr. Posner had engaged in fraud and undue influence. Dr. Gordon and Ms. Geduldig alleged tortious interference with their expected inheritance, in addition to independent claims of fraud and undue influence. Dr. Gordon and Ms. Geduldig claimed that the revocable trust was a product of the fraud and undue influence and requested compensatory damages, punitive damages, and the imposition of a constructive trust on assets distributable under the trust.

On October 26, 1998, the two actions were consolidated. Dr. Posner filed a motion for summary judgment on the ground that (1) there was no legally sufficient evidence of undue influence and fraud because there was no evidence that force or coercion had been exercised upon Ms. Posner; (2) tortious interference with expected inheritance is not recognized as a tort in Maryland; and (3) there was no evidence of expectation of an inheritance. The circuit court, by memorandum opinion and order dated May 6, 1999, granted the motions. The court found that there was no evidence of undue influence because of the absence of any evidence that Ms. Posner was susceptible to any influence or false statements and further found that there was no evidence that fraudulent statements, if any, had any causative effect on Ms. Posner's distribution of assets.

Facts

On July 11, 1985, Ms. Posner executed a will revoking "all" prior wills, in which she (1) named Dr. Posner and James P. McDonagh, a friend of the family, as personal representatives, (2) bequeathed $100 to Ms. Geduldig and each of her surviving children, and (3) bequeathed the residue of her estate, in equal shares, to Dr. Posner and Dr. Gordon. Ms. Posner and Ms. Geduldig were estranged at that time. On October 9, 1985, Ms. Posner executed a codicil to the "Last Will and Testament dated July 11, 1985," in which she purported to exercise a power of appointment over the assets of the marital trust created under Nathan Posner's will. She appointed the assets, in equal shares, to Dr. Posner and Dr. Gordon. On that same day, Ms. Posner made inter vivos gifts of $750,000 each to Dr. Posner and Dr. Gordon.

On February 13, 1986, Ms. Posner executed a will in which she revoked all prior wills and (1) named Dr. Posner and Mr. McDonagh as personal representatives, (2) bequeathed $100 to Ms. Geduldig and each of her surviving children, and (3) bequeathed the residue of her estate, including the marital trust assets, to Dr. Posner and Dr. Gordon, in equal shares. According to an affidavit filed by Dr. Gordon, a psychiatrist, Ms. Posner, in later life, "suffered from emphysema, heart disease, insomnia, and other physical ailments. Her physical condition became progressively worse during the 1980's, and she eventually was required to use an oxygen dispenser continuously to assist her in breathing." According to the same affidavit, Ms. Posner suffered from depression after Nathan Posner's death and from time to time thereafter. She also chronically suffered from shortness of breath.

Dr. Gordon testified in her deposition that she began treating Ms. Posner in 1988 for depression, anxiety, and insomnia. She prescribed Klonopin, Prozac, and subsequently, BuSpar.² This alleviated Ms. Posner's anxiety and shortness of breath.

On October 14, 1990, Ms. Posner executed a will, revoking "all" prior wills. Ms. Posner (1) named Dr. Posner and Mr. McDonagh as personal representatives and Dr. Posner as trustee, (2) bequeathed $100 to Ms. Geduldig and each of her surviving children, (3) bequeathed $1,000,000 in trust for the benefit of Dr. Posner's children, and (4) bequeathed one half of the residuary estate, including the marital trust assets, to Dr. Posner and the other half to Dr. Posner as trustee for the benefit of Dr. Gordon. The income of the trust was to be paid to Dr. Gordon during her lifetime and the principal to Dr. Posner's children upon Dr. Gordon's death. Dr. Gordon was given a right to invade principal to provide for her health care and in the event of poverty.

This was the first of Ms. Posner's wills that was prepared by Mark Willen, an attorney retained for that purpose. Mr. Willen, in his deposition, testified that he had been representing Dr. Posner for 15 to 18 years and that Dr. Posner introduced him to Ms. Posner.

On December 25, 1993, Ms. Posner became ill while in Florida. Dr. Gordon visited her, determined that the medical care she was receiving was inadequate, and arranged for Ms. Posner to be transferred to Lankenau Hospital in Philadelphia, where she came under the care of Ms. Posner's brother, Laurence T. Browne, an internist. On February 4, 1994, Ms. Posner was discharged to the Devon Manor Nursing Home in Philadelphia, where she remained under Dr. Browne's care.

Dr. Browne, in his deposition, testified that, during that time period, he became concerned with respect to the estrangement between Ms. Posner and Ms. Geduldig. He arranged for Ms. Geduldig and her children to visit Ms. Posner at Devon Manor, and the family members reconciled. He further testified that both Ms. Geduldig and Dr. Gordon visited on several occasions in the winter and spring of 1994.

Following the reconciliation, according to Dr. Browne, Ms. Posner told him that she wanted to treat her three children equally. On February 6, 1994, Ms. Posner executed a will revoking "all" prior wills, in which she named Dr. Posner, Dr. Gordon, and Mr. McDonagh as personal representatives and bequeathed the residue of her estate and the marital trust assets to the three children, in equal shares. The record does not reflect who prepared that will, but it was not prepared by Mark Willen. It appears to have been executed in Pennsylvania.

Dr. Browne, in his deposition, testified that as a result of Ms....