Litherland v. Jurgens, 291 Neb. 775

Decedent Etta J. Ideus Jurgens executed a will (2004) leaving certain real estate to her daughter Janice Litherland and bank accounts to be divided equally among Litherland and stepchildren Gary Jurgens and Velda Lenners; Jurgens and Lenners were named joint personal representatives.
In 2006 Etta gave Gary Jurgens a durable power of attorney; Jurgens, as attorney-in-fact, caused sale of the real estate that Litherland would have received and deposited proceeds into Etta’s bank accounts.
Upon Etta’s death, the bank accounts (including sale proceeds) were distributed equally per the will to Litherland, Jurgens, and Lenners.
Litherland sued in district court asserting unjust enrichment (against Jurgens), intentional interference with an inheritance (against Jurgens), and conspiracy (against both). Defendants moved to dismiss for lack of jurisdiction and failure to state a claim.
The district court dismissed the unjust-enrichment claim as belonging in probate court, assumed (for argument) Nebraska recognized the tort of intentional interference with an inheritance but dismissed that claim for inadequate probate remedies and insufficient allegations of defendants’ knowledge of the will; it also dismissed the conspiracy claim. Litherland appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nebraska should recognize the tort of intentional interference with an inheritance	Litherland urged adoption of the tort to recover for interference with the devise	Defendants argued Nebraska should not adopt the tort and probate remedies are adequate	Court declined to adopt the tort in Nebraska
Whether probate remedies were adequate and exclusive	Litherland contended probate remedies were inadequate and she could sue in district court	Defendants argued probate court had jurisdiction and provided adequate equitable relief (e.g., constructive trust)	Probate remedies were adequate; action belongs in probate context
Whether plaintiff adequately alleged intent/knowledge required for the tort	Litherland asserted sufficient facts to infer intent to deprive her of the inheritance	Defendants argued complaint lacked allegations that they knew will terms before the sale	Court agreed plaintiff failed to plead requisite intent/knowledge for the tort (and declined to adopt tort regardless)
Whether conspiracy claim survives without underlying tort	Litherland maintained conspiracy claim independent	Defendants contended conspiracy depends on underlying tort	Court held conspiracy requires an underlying tort, so it fails without adoption of the tort

Crosby v. Luehrs, 266 Neb. 827 (2003) (prima facie fraud when attorney-in-fact uses power to gift to self; shifts burden to fiduciary to prove donor intent)
Archbold v. Reifenrath, 274 Neb. 894 (2008) (agent under power of attorney cannot make substantially gratuitous transfers absent clear authorization)
In re Estate of Hedke, 278 Neb. 727 (2009) (durable power-of-attorney self-dealing raises presumption of constructive fraud; fiduciary must show clear intent and fairness)
Manon v. Orr, 289 Neb. 484 (2014) (expressed disfavor of adopting intentional-interference-with-inheritance tort in Nebraska)
Marshall v. Marshall, 547 U.S. 293 (2006) (recognizes the tort as widely recognized nationally)