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If You Weren’t Named in the Will as You Were Told You Would Be, You May Have a Wrongful Interference Claim

Published: September 29th, 2014

By: David P. Hathaway

A child was supposedly told by his parent that he would receive some kind of inheritance, whether money, real estate or a savings account. After the parent passed away, it was found that the child was not named in the parent’s will, and was in fact specifically omitted. Can this exclusion be challenged under Florida law, when the child has no written documentation to challenge it? At first glance, the statutes would seem to say, no. Section 732.701, Florida Statutes, on Agreements Concerning Succession, specifically says that no agreement to make, not make or revoke a will “shall be binding or enforceable unless the agreement is in writing and signed by the agreeing party in the presence of two attesting witnesses.” The statute seems clear: a written and properly witnessed will presumably expresses the final wishes of the individual who made it, and unless there is any ambiguity in terms, the will speaks for itself. Or does it? Actually, there is a disconnect between the statute and the ability to claim a tort (legal wrong) in Florida called “wrongful interference with testamentary  expectancy. This is a legal doctrine that was first recognized in Florida in the 1966 case of Allen v. Leybourne[1] and further expanded by Whalen v. Prosser[2] in 1998. In effect, this doctrine allows a potential beneficiary to sue in court for being omitted from a will when the person who executed the will (the testator) had previously expressed an intent for inclusion – whether or not that expression was in writing – but was wrongfully prevented from carrying it out. The idea behind the tort is that it actually protects the intent of the testator to dispose of assets or property freely, rather than protecting the beneficiary whose interest was reduced or eliminated. This kind of wrongful interference is difficult to prove, but the possibility that it can be proved is sufficient to allow for a lawsuit. In order to make a successful claim for wrongful interference, four elements must be satisfied:

  • The existence of an expectancy (a potential beneficiary’s expectation of, but not vested interest in, a possible inheritance);
  • Intentional interference with that expectancy (this could be fraud, undue influence, or another illegal act committed against the testator);
  • Causation behind the interference (that the testator was trying to do one thing, but was unable due to the wrongful actions); and
  • Damages that the potential beneficiary can claim.

A sibling, a child, or any other person in close contact with a testator before his or her death could be shown to have created the duress or fraud which constitutes a tort. And this is not just limited to wills. A settlor of a trust could be affected the same way. With regard to joint bank accounts, section 655.79, Florida Statutes, states that when one account holder dies, a presumption of a valid account “may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent.” That proof may include what is termed parol evidence – showing that a verbal communication was made prior to or upon the execution of a written contract such as opening a bank account, or (in other circumstances) finalizing a will. Again, proving wrongful interference with testamentary expectancy is difficult given the wording of the Florida Statutes. But it is possible using the Allen and Whalen case precedents, and a tort action like this allows for a jury trial. [1]190 So.2d 825 (Fla. 3d DCA 1966) [2] 719 So. 2d 2 (Fla. 2d DCA 1998)