The Restatement of Torts recognizes tortious interference with an expectancy. See Restatement (Second) of Torts § 774B (1979) “Intentional Interference with Inheritance or Gift”. This is action is separate and distinct from a will contest. In Maryland, this tort is barely recognized (or put another way, not yet dead). In short, a party must demonstrate that there is not an adequate remedy under equity before sustaining an action for tortious interference with an expectancy in Maryland courts.
In Geduldig v. Posner, 129 Md. App. 490, 743 A.2d 247 (1999), the Court of Special Appeals was presented with an undue influence case that also contained a count of tortious interference with expected inheritance. In that case, the testatrix was videotaped while executing her will. The videotape included a psychiatrist asking the testatrix various questions to, presumably, demonstrate her competency in anticipation of a will contest. The caveators asserted undue influence and sued the favored children based on tortious interference with an expectancy. In Geduldig, the court decided that the only reason for the tort count in the lawsuit was to introduce the possibility of punitive damages in a case where punitive damages would not be available:
“In [Kann v. Kann, 344 Md. 698, 690 A.2d 509 (1997)], the Court of Appeals refused to recognize a generic cause of action at law for breach of fiduciary duty. The issue was discussed, primarily, in the context of a right to jury trial. The Court of appeals observed that, historically, the supervision of trust was within the province of equitable courts, which included claims by beneficiaries against trustees. The Court opined that recognition of such an action at law would enlarge damages liability, including the potential for punitive damages, not available in equity. The Court concluded that it would not preside over the death of contract by recognizing as a tort a breach of contract that was found to be in bad faith. See K&K Management, Inc. v. Lee, 316, Md. 137, 169, 557 A.2d 965, 980-81 (1989); Alexander & Alexander, Inc. v. B. Dixon Evander & Associates, 336 Md. 635, 654, 650 A.2d 260, 269-70 (1994) (`[T]his Court refused to adopt any theory of tortuous interference with contract of with economic relations that transforms a breach of contract claim into an intentional tort.’) Nor shall we preside over the death of equity by adopting [appellants’] contentions. 334 Md. at 713. Synthesizing the above, we conclude that the Court of Appeals would recognize the tort if it were necessary to afford complete, but traditional, relief. In the case before us, no reason is given as to why recognition of the tort is necessary other than that damages are sought which are not otherwise available, specifically, damages for emotional distress, harm to reputation, and punitive damages. We decline to recognize the tort where the sole reason is an expansion of traditional remedies, as opposed to a situation, not before us, where the traditional remedy might be insufficient to correct the pecuniary loss. The question of viability and application of the tort depends on the facts in a given case.”
Id. at 508-509.
As evidenced above, the tort is not dead upon arrival in Maryland courts but wounded. The plaintiff must demonstrate a unique factual pattern supporting the alleged tort in order for the tort to be recognized. For example, the court may find tortuous interference with an expectancy if someone were to use undue influence to induce gifts from the decedent during his or her lifetime. In such a situation, the caveat remedy would be insufficient to bring those gifts back into the estate. Court usually adhere to the rule that equitable actions do not exist if there is an adequate remedy at law. However it is questionable whether the courts should so cavalierly preclude tortious interference with an expectancy. In many cases of undue influence, the person abusing the confidential relationship ends up being personal representative as well as the main heir. If the caveators challenge the will they may end up paying for the defense of a bad will as long as that defense is in good faith. See Md. Code Ann., Est. & Trusts § 7-603; National Wildlife Federation v. Foster, 83 Md. App. 484, 575 Md. App. 776 (1990).
A federal case illustrates the difference between a caveat or similar action and the intentional tort plead here. In re Marshall, 253 B.R. 550, 559-560 (Bkrtcy. C.D. Cal. 2000), involved an allegation, not that Mr. Marshall’s son engineered a different bequest than his father actually wanted to leave his new (and substantially younger) wife, Anna Nicole Smith, but that the son manipulated events to derail that bequest. Apparently the father could not be swayed from leaving the bequest. The son therefore took various actions to make sure that his father’s instructions were not followed despite his father’s clear instructions. This case resulted in the U.S. Supreme Court decision, Marshall v. Marshall, 547 U.S. 293, 311 (2006), which involved a collateral issue of whether the so-called “probate exception” to federal jurisdiction trumped federal bankruptcy jurisdiction. The Court determined that the probate exception is not triggered for a claim of tortious interference with an inheritance because it seeks an in personam judgment and does not involve an interpretation or enforcement of rights under a will or trust. In other words, it is a wholly separate action.