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:
JENSEN, Justice
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.
[¶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).
[¶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 ),
Decision
[¶9.] Tortious interference with inheritance, or at least a version of it, was recognized in Georgia in 1915. Mitchell v. Langley ,
[¶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 ,
[¶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
[¶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 ,
[¶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.
[¶14.] Conversely, a number of decisions from the highest courts of other states have unequivocally declined to adopt a cause of action for tortious interference with inheritance or expected inheritance. The Virginia Supreme Court declined to adopt the tort, reasoning that "[a] person who is mentally competent and not subject to undue influence may make any disposition of his property he chooses during his lifetime or by will at his death."
[¶15.] The Nebraska Supreme Court has twice indicated it will not adopt the tort as a valid cause of action. Litherland v. Jurgens ,
[¶16.] The Arkansas Supreme Court, after examining the reasons for and against adopting the tort, declined to allow the cause of action because "there are sufficient other avenues, short of creating a new cause of action, that serve to remedy the situation for plaintiff[.]" Jackson v. Kelly ,
[¶17.] For years, it appeared as if the tort was actionable in Texas. However, in 2017, the Texas Supreme Court rejected "[a] handful of Texas courts of appeals" decisions recognizing tortious interference with inheritance as a cause of action. Kinsel v. Lindsey ,
[¶18.] In between the two ends of the spectrum, decisions from other state supreme courts have either adopted the tort in a limited fashion or declined, on the facts before those courts, to adopt it. For example, the Idaho Supreme Court declined to adopt the tort under the facts, indicating, "Assuming, without deciding, that this [c]ourt would recognize the tort of interference with inheritance, [plaintiff] would be required to prove that he was deprived of an inheritance." Losser v. Bradstreet ,
[¶19.] In contrast, the Massachusetts Supreme Court adopted the tort, but it adopted it only "in certain limited conditions." Labonte v. Giordano ,
[¶20.] The Florida Supreme Court also adopted the tort but required plaintiffs to first exhaust probate remedies. DeWitt v. Duce ,
[¶21.] When the Illinois Supreme Court adopted the tort and examined its scope, it recognized there may be evidentiary overlap between the tort action and a will contest.
[¶22.] With these cases in mind, we now consider the tort in the context of South Dakota's existing statutes and case law. We initially consider SDCL 43-3-6, which provides that "[a] mere possibility, such as the expectancy of an heir apparent, is not deemed an interest of any kind." Under this long-standing statute, an heir has no interest in, or right to inherit, property of another prior to that person's death. Therefore, a testator may, up to the moment of death, revise and amend the disposition of the estate, and a prospective beneficiary's right to inherit depends on the decedent's final testamentary disposition in favor of that beneficiary. However, the statute does not directly address whether a third party's intentional and wrongful interference with an intended disposition may create a compensable loss in tort to an expectant heir or beneficiary as against the wrongdoer.
[¶23.] More importantly, for the purpose of resolving the question before this Court, we recognize that our Legislature has created a broad statutory scheme for the formulation and administration of wills and trusts. One core principle attendant
[¶24.] When, however, a third person wrongfully infringes upon the testator's intent in the creation or modification of a will or trust, that infringement affects the person's intended disposition of his or her property. In those situations, our laws provide parties a means to challenge the validity of the testamentary documents. See, e.g. , SDCL 29A-3-407 ; SDCL 55-4-57 ; see also In re Donald Hyde Trust ,
[¶25.] Notwithstanding, Thomas claims that the tort is necessary because our traditional trust and probate remedies are inadequate to address every instance of potential wrongful conduct by a third party that may interfere with an expected inheritance. As an example, Thomas speculates that our existing laws would not remedy "wrongful disparaging statements that do not rise to the level of a false statement in a probate contest[;] beneficiary conduct that wrongfully isolates a testator from other beneficiaries so that the testator disinherits the isolated beneficiaries[;] and other controlling behavior that interferes with inheritance rights, but is not directed specifically to the invalidation of a testamentary document."
[¶26.] On the contrary, the conduct described by Thomas may very well be relevant in a proceeding challenging a testamentary document. "[A]ny evidence which shows susceptibility, opportunity, disposition to use, or a result indicative of undue influence is admissible." In re Estate of Melcher ,
[¶27.] Thomas, however, also argues that the tort is necessary to remedy inter vivos transfers of property influenced by wrongful conduct that depletes the assets of an individual or a trust prior to death. He
[¶28.] Current remedies exist when inter vivos transfers of property arise from wrongful conduct by a third party. See SDCL 55-1-7 to -10. In particular, under SDCL 55-1-8, "[o]ne who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust or other wrongful act , is, unless he has some other and better right thereto, an implied trustee of the thing gained for the benefit of the person who would otherwise have had it." (Emphasis added.) Further, SDCL 55-1-11 broadly permits a court to establish and declare an implied or constructive trust based on "the facts and circumstances of a transaction[,]" DFA Dairy Fin. Servs., L.P. v. Lawson Special Tr. ,
[¶29.] The availability of a constructive trust as a remedy to a wrongful inter vivos transfer led the Texas Supreme Court to reject the tort of intentional interference with inheritance. Kinsel ,
[¶30.] Thomas next urges us to adopt the tort because this Court has previously adopted other common law torts from the Restatement (Second) of Torts. In particular, he cites to our recognition of the tort of intentional interference with prospective contracts.
[¶31.] Finally, Thomas contends we should adopt the tort of intentional interference with inheritance because the short statute of repose for challenging the validity of a trust under SDCL 55-4-57 makes it impractical, or impossible in some instances, to discover wrongful interference before the statutory period expires. SDCL 55-4-57 requires that a proceeding to challenge a trust be commenced within the shorter of either: (1) "[o]ne year after the settlor's death" or (2) sixty days after proper notice is given to the person seeking to challenge the trust.
[¶32.] Admittedly, sixty days, even after notice, is an abbreviated period to commence an action challenging a trust. Nonetheless, we have recognized that this repose period is a public policy decision of the Legislature intended to effectuate "the expeditious distribution of the trust property following the settlor's death." See
[¶33.] Having considered the decisions from other jurisdictions and other policy considerations under existing law in this State, we are not persuaded to adopt a cause of action for intentional interference with inheritance and expand tort liability to the already existing panoply of remedies available to estate litigants in South Dakota. South Dakota law provides redress for the allegations asserted by Thomas in his federal complaint, and we believe it would be improvident to expand tort liability without a clear demonstration that a litigant has no adequate remedy at law. We, therefore, answer the certified question in the negative.
A judicial proceeding to contest whether a revocable trust or any amendment thereto, or an irrevocable trust was validly created may not be commenced later than the first to occur of:
...
(2) Sixty days after the trustee, trust advisor, trust protector, or the settlor sent the person who is contesting the trust a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding[.]
SDCL 55-4-57(a)(2) provides:
At least three state supreme courts have adopted the tort but have not clarified its scope. Bohannon v. Wachovia Bank & Tr. Co. ,
Although multiple plaintiffs have asked New York appellate courts and federal district courts to re-examine the state's position on the issue, no New York court has allowed the claim to proceed. See, e.g. , Knapp v. Maron , 14-CV-10121,
See also Wilson v. Fritschy ,
Courts recognizing the tort of intentional interference with inheritance generally require proof of more than a "mere possibility" of an expected inheritance in order to recover. Instead, there "must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator or that the gift would have been made inter vivos if there had been no such interference." Restatement (Second) of Torts § 774B cmt. d (1979). See also Frohwein ,
The factors considered in determining whether a confidential relationship may exist include the "amount of time the beneficiary spent with the testator, whether the beneficiary handled many of the personal or business affairs of the testator, and whether the testator ever sought the advice of the beneficiary." In re Estate of Dokken ,
The comments indicate the tort of intentional interference with a gift or inheritance "represents an extension to a type of noncontractual relation of the principle found in the liability for intentional interference with prospective contracts stated in § 766B." Restatement (Second) of Torts § 774B cmt. a (1979).