I. Schilling v. Herrera, 952 So.2d 1231
II. Key Facts
Mignonne Helen Schilling (the decedent) executed her Last Will and Testament, naming her brother and only heir-at-law, Mr. Edward Schilling (“Mr.Schilling”), as her personal representative and sole beneficiary, and as attorney-in-fact for personal and healthcare decisions. Shortly after the creation of her will , the decedent was diagnosed with renal disease, resulting in several hospitalizations and to ability to no longer take care of herself. Before her death, her caretaker Ms. Herrera convinced the decedent to prepare and execute a new Power of Attorney, naming Ms. Herrera as attorney-in-fact, and to execute a new Last Will and Testament naming Ms. Herrera as personal representative and sole beneficiary of the decedent’s estate. After the decedent died, Ms. Herrera filed a Petition for Administration. Ms. Herrera did not notifiy Mr. Schilling that the decedent, his sister, had passed away until after the expiration of the creditor’s period and after Ms. Herrera had petitioned the probate court for discharge of the probate. Mr. Schilling alleges that prior to being notified of his sister’s death , he attempted to contact the decedent through Ms. Herrera, but Ms. Herrera did not return his calls until the conclusion of probate proceedings and did not inform him of his sister’s death, thereby depriving him of both the knowledge of the decedent’s death and the opportunity of contesting the probate proceedings. Mr. Schilling further alleges that prior to the decedent’s death, Ms. Herrera regularly did not immediately return his phone calls, and that Ms. Herrera’s “intentional silence was part of a calculated scheme to prevent [Mr.] Schilling from contesting the Estate of Decedent, and was intended to induce [Mr.] Schilling to refrain from acting in his interests to contest the probate proceedings in a timely fashion, as [Mr.] Schilling was used to long delays in contact with [Ms.] Herrera, and did not
Ms. which he was entitled to. Herrera’s action of procuring the will naming her as sole beneficiary. The Issue
May a party who would have contested a will but was prevented from doing so by another person’s fradualent conduct bring a claim for intentional interference with an expectancy of inheritance?
III. Herrera for prejudice based on the trial court’s finding that the amended complaint fails to state a cause of action and that Mr. and but for Ms.Holding
Yes.suspect that the delay was intended to fraudulently induce [Mr.
II. Mr. he would have received the benefit of the estate. a party who would have contested a will but was prevented from doing so by another person’s
.” Finally. Schilling suit against Ms. remedies.
I. Schilling is barred from filing the action because he failed to exhaust his probate.] Schilling to refrain from acting on his own behalf. Procedural History
intentional interference with an expectancy of inheritance was dismissed with
Mr. Schilling alleges that he expected to inherit the decedent’s estate because he was the decedent’s only heir-at-law and because he was named as the sole beneficiary in the 1996 will. Herrera’s fraudulent actions prevented him from receiving the decedent’s estate. Schilling appealed his dismissal to and The Appeals court disagreed to both findings and reverse and remanded the case back to the district court for further proceedings. Mr.
Herrera. Herrera intentionally interfered with his expectancy of inheritance by “convincing” the decedent. The Appeals court disagreed based on the following case law in Claveloux v. while she was ill and completely dependent on Ms. that Ms. Claveloux v. Bacotti in which the court decribed the four elements necessary to bring an action for the intentional interferance with an expectancy for inheritance the claim must allege : (1) the existence of an expectancy. Herrera as the sole beneficiary. and that Ms. Schilling was named as the sole beneficiary in the decedent’s last will and testament.
In the instant case. (2) intentional interference with the expectancy through tortious conduct. the trial court’s ruling was based on the fact that the amended complaint fails to allege that Ms. Herrera breached a legal duty owed to Mr. 2d 2. (3) causation. to execute a new last will and testament naming Ms.
. 778 So. 2d DCA 2001)(citing Whalen v. he expected to inherit the decedent’s estate upon her death.
IV. 2d 399. 2d DCA 1998)
A The Appeals court contends . 719 So. Prosser. Bacotti. 400 (Fla. Schilling met these elements in in his amended complaint alleges that Mr. that based on this last will and testament.Mr.fradualent conduct may bring a claim for intentional interference with an expectancy of inheritance.Reasoning The Appeals Court disagreed with the trial courts decision holding that (1) and (2). and (4) damages. Schilling. 5 (Fla. Herrera’s “fraudulent actions” and “undue influence” prevented Mr.
Brassell v.” Warren ex rel. 2d 204..
V. 2d 59. Inc. 1st DCA 2005). This court “must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint. 842 So. v.Schilling from inheriting the decedent’s estate. Based on these well-pled allegations. Important subsequent history
Third District Court of Appeal
PROCEDURAL HISTORY LEGAL ANALYSIS A trial court’s ruling on a motion to dismiss for failure to state a cause of action is an issue of law. 236 (Fla. the trial court erred. VI. Rosenthal & Rosenthal.. 913 So. 3d DCA 2003). Inc. Morrison. 765 So. see also Marshall v. as a matter of law. 943 So. Inc. Amerisys. Therefore.
. and therefore.Separate Opinions/ Concurring Opinions/ Dissenting Opinions VII. 2d 276. Susan Fixel. our standard of review is de novo.. 1st DCA 2000). Roos v. 63 (Fla. 2d 235. 206 (Fla. K-Mart Corp. Disposition
VIII. in dismissing the amended complaint on that basis. we conclude that the amended complaint states a cause of action for intentional interference with an expectancy of inheritance.
. but to protect the deceased testator’s former right to dispose of property freely and without improper interference. The beneficiary is not directly defrauded or unduly influenced. More than
. or other independent tortious conduct required for this tort is directed at the testator. Mr. duress. the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party. We agree. This is consistent with the Whalen court’s explanation that the “fraud. the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights. review the amended complaint to determine if it sufficiently pleads a cause of action for intentional interference with an expectancy of inheritance. not the beneficiary: Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations. the testator is. including the attachments thereto. However. 3d DCA 2006)(“In determining the merits of a motion to dismiss. Duce . the trial court relied on DeWitt v. undue influence. 1981). the beneficiary’s action is derivative of the testator’s rights. there are four elements for a cause of action for intentional interference with an expectancy of inheritance.278 (Fla. In finding that Mr. We. 2d at 6. Thereafter. In DeWitt . but voluntarily dismissed the petition. The court in Whalen clearly explained that the purpose behind this tort is to protect the testator. Thus. therefore. undue influence. The fraud.”). Schilling also contends that the trial court erred in finding that he was barred from filing a claim for intentional interference with an expectancy of inheritance as he failed to exhaust his probate remedies. the plaintiffs filed a petition for revocation of probate of the testator’s will. duress. The beneficiary is not directly defrauded or unduly influenced. (emphasis added). In a sense. Schilling was barred from filing his action for intentional interference with an expectancy of inheritance. 408 So. and breach of a legal duty is not one of the elements. the testator’s will was admitted to probate after his death. the court is confined to the four corners of the complaint. Whalen.” Id. the testator is. as the Claveloux court noted. or other independent tortious conduct required for this tort is directed at the testator. choosing to take under the will instead of challenging the will in probate court. 2d 216 (Fla. 719 So.
and undue influence. causing the testator to execute the probated will. Section 733. mistake. Schilling learned of the decedent’s death prior to the entry of the Final Order of Discharge. Florida Statutes (1977). at 218. statutory or otherwise. stated that an exception to this general rule is that “[i]f
. certifying the following question to the Florida Supreme Court: Does Florida law. In answering the certified question in the affirmative. that it was executed by a competent testator. The 2005 version is substantially the same. arguing that the defendants exercised undue influence over the testator at a time when he lacked testamentary capacity. Schilling of the decedent’s death until after she petitioned for discharge of probate. Ms.103(2). except that the words “of the fact” have been eliminated. We find that this argument lacks merit. 408 So. then that remedy must be exhausted before a tortious interference claim may be pursued. The decision was appealed to a federal district court. however. finding that pursuant to section 733. Florida Statutes (1977). the Florida Supreme Court stated that “[t]he rule is that if adequate relief is available in a probate proceeding. Herrera argues that although she did not inform Mr. the plaintiffs were foreclosed from proving the facts necessary to establish a cause of action for intentional interference with an expectancy of inheritance. there was no fraud as Mr. 2d at 216-17.” Id. duress. and of the fact that the will was unrevoked on the testator’s death. The Court. the plaintiffs filed their claim for intentional interference with an inheritance. free of fraud.two years later. preclude plaintiffs from proving the essential elements of their claim for tortious interference with an inheritance where the alleged wrongfully procured will has been probated in a Florida court and plaintiffs had notice of the probate proceeding and an opportunity to contest the validity of the will therein but chose not to do so? DeWitt. The trial court dismissed the action. and the federal court determined it would be better for the Florida Supreme Court to decide the issue. provides as follows: In any collateral action or proceeding relating to devised property. the probate of a will in Florida shall be conclusive of its due execution.103(2). which was less favorable to the plaintiffs and more favorable to the defendants than the testator’s previous will.
In Ebeling .103. finding that pursuant to section 733. the plaintiffs filed an action against the defendant for intentional interference with an expectancy of inheritance. at 219. However. . or in
.103(2) as barring [plaintiffs] from a subsequent action in tort for wrongful interference with a testamentary expectancy. 2d 783 (Fla. . the Court’s holding that the plaintiffs were barred from pursuing their claim for intentional interference with an expectancy of inheritance. The Court also noted that “[c]ases which allow the action for tortious interference with a testamentary expectancy are predicated on the inadequacy of probate remedies . and accordingly answer the certified question in the affirmative. we interpret section 733. the Florida Supreme Court held: In sum.” Id. The first alleged fraud stems from Ms. at 219. This issue was later addressed by the Fourth District in Ebeling v. Voltz . language contained in DeWitt clearly indicates that a subsequent action for intentional interference with an expectancy of inheritance may be permitted where “the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court. Herrera’s actions in preventing Mr. if only the first type of fraud was involved. finding that “[e]xtrinsic fraud. we find that [plaintiffs] had an adequate remedy in probate with a fair opportunity to pursue it. 454 So. Because they lacked assiduity in failing to avail themselves of this remedy. alleging that. whereas the second alleged fraud stems from Ms. . Schilling’s collateral attack of the will would be barred. they did not contest the will in probate court because the defendant made fraudulent statements inducing them not to contest the will. Herrera’s undue influence over the deceased in procuring the will. the plaintiffs were barred from attacking the will. and therefore inapplicable. Mr. Schilling has alleged two separate frauds. at 221. although they knew of the probate proceeding.” Id.” Id. was based on the fact that the plaintiffs had an adequate remedy in probate. Florida Statutes (1983). 4th DCA 1984). The trial court granted the defendant’s motion to dismiss.the defendant’s fraud is not discovered until after probate. In conclusion. and the plaintiffs’ failure to pursue their remedy was due to their lack of diligence. plaintiff is allowed to bring a later action for damages since relief in probate was impossible. The Fourth District reversed. We acknowledge that pursuant to DeWitt . We find that DeWitt is factually distinguishable. Id. the plaintiffs had a fair opportunity to pursue their remedy. Therefore. A review of the amended complaint reflects that Mr. Schilling from contesting the will in probate court.
Schilling as true.” Id. and remand for further proceedings. Herrera while the decedent was living in her home. Schilling was prevented from contesting the will in the probate court due to Ms. Herrera did not inform Mr. As the facts in the amended complaint sufficiently allege that Mr. fraud alleged in the prevention of the will contest.
. Mr. Schilling called Ms. In the instant case. Schilling was the decedent’s attorney-infact. Mr. Schilling sent money to Ms. Accordingly. as opposed to in the making of the will. would appear to be the type of circumstance that would preclude relief in the probate court.103(2). Herrera numerous times. Schilling stayed in contact with Ms. Schilling’s amended complaint. The court noted that the fraud alleged in the complaint prevented the plaintiffs from pursuing the incapacity claim in the probate court. Mr. Herrera’s home.” Id. Florida Statutes. pursuant to powers of attorney executed by the decedent. and Ms. Schilling’s claim for intentional interference with an expectancy of inheritance was barred. we find that the trial court erred in finding that Mr. after the decedent passed away. and therefore. Schilling traveled to Miami on numerous occasions to visit the decedent. Mr. the action “falls into the category of cases that DeWitt considers outside the purview of Section 733. Mr. Herrera to obtain information regarding the decedent. we must accept the facts alleged by Mr. Mr.other words. throughout the decedent’s numerous illnesses. Schilling made decisions regarding the decedent’s care. Mr. He alleges in the amended complaint that when the decedent began to live in Ms. Schilling of his sister’s death until after she petitioned for discharge of probate. we reverse the order dismissing Mr. Schilling relied on Ms. whose condition progressively worsened. but she would not return his calls. Herrera to pay for the decedent’s care. Herrera’s fraudulent conduct.