A New Tort That Should Find Acceptance in Massachusetts

In recent years courts in several jurisdictions have recognized a legal claim or theory of recovery known as “tortious interference with intended bequest”. This legal theory has grown out of the recognition that people are often able to frustrate the intentions of others who wish to amend their wills or trusts to benefit someone who has come into, or returned to, their lives, or to more accurate reflect the state of their relationships.

This can play itself out in several real world situations. More and more elderly people are foregoing long-term care in nursing homes in favor of living with children and grandchildren. In many instances children spend much of their savings or net worth caring for an elderly parent. These are situations in which a parent may feel an “indebtedness of gratitude” to the child taking care of them. But what if, in later years, children who were estranged or emotionally distant from their parents return to their lives for all the right reasons? And what if the “caregiving” child limits access to their sibling or otherwise persuades their mother or father from making a change to a will or trust to recognize the change in that relationship?

Courts in Florida, Iowa and Missouri have validated the right to bring a claim for tortious interference with an intended bequest. The elements necessary to prove such a claim are strict—it requires a showing of the use of improper means (e.g. undue influence) and continuously until death. The Florida and Missouri courts have even allowed such a claim to be made as part of the process of probating the will; in other words, the claim can be advanced as a will contest and not as a separate lawsuit.

Although few states have formally recognized this theory, it is not a far-fetched theory of recovery. The preeminent scholars in the area of tort law, Prosser & Keeton, wrote about it in a positive vein several decades ago. It is time that Massachusetts formally recognized the theory. I have seen judges in the Probate Court be receptive to arguments that the theory should be validated, and perhaps we will soon see the day when our appellate courts put their stamp of approval on it.

Super Lawyers