Law of Wills, 2016A

cause of action against the third party. The tort of IIE was derived from Restatement (Second) of
Torts § 774B(1979). Courts have been reluctant to recognize the tort of IIE because the person
bringing the cause of action typically has access to an adequate remedy in probate court. In fact,
most probate codes explicitly state that the exclusive means of challenging the validity of a will is a
will contest action filed in the probate court. IIE resembles a will contest because the plaintiff claims
that he or she did not receive the inheritance that he or she expected because of the fraud, duress
and/or undue influence perpetrated by the third party. Therefore, some courts reason that
recognition of IIE, a separate cause of action, is unnecessary because the plaintiff can achieve the
same outcome by filing a will contest action.
In order to successfully bring a cause of action for IIE, the plaintiff has to prove four things.
First, the plaintiff must show the existence of an expectancy. The plaintiff can accomplish this by
demonstrating that he or she was the beneficiary of a testator’s prior will or the heir at law of an
intestate decedent. Second, the plaintiff must establish the intentional interference with his or her
expectancy through tortious conduct. In order to satisfy this requirement, the plaintiff must present
evidence that the third party committed a tort that deprived the plaintiff of his or her inheritance.
The tortious conduct that the plaintiff usually alleges includes fraud, duress and/or undue influence.
Third, the plaintiff must prove that the third party’s actions caused him or her to lose the expected
inheritance. Fourth, the plaintiff must prove damages.
§ 774B Intentional Interference with Inheritance or Gift
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.
Schilling v. Herrera, 952 So. 2d 1231 (Fla. App. 2007)
ROTHENBERG, Judge.
The plaintiff, Edward A. Schilling (“Mr. Schilling”), appeals from an order granting the defendant
Maria Herrera’s (“Ms. Herrera”) motion to dismiss the amended complaint with prejudice based on
the trial court’s finding that the amended complaint fails to state a cause of action and that Mr.
Schilling is barred from filing to action because he failed to exhaust his probate, remedies. We
disagree as to both findings and, therefore, reverse and remand for further proceedings.
PROCEDURAL HISTORY
Mr. Schilling, the decedent’s brother, sued Ms. Herrera, the decedent’s caretaker, for intentional
interference with an expectancy of inheritance. Ms. Herrera moved to dismiss the complaint, arguing
that Mr. Schilling failed to state a cause of action and that he was barred from filing his claim
because he failed to exhaust his probate remedies. The trial court granted the motion to dismiss
without prejudice.
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