In Cresto v. Cresto, 358 P.3d 831 (Kan. 2015), the testator’s disinherited children from his two prior marriages brought a claim for declaratory judgment seeking a declaration that the testator’s third wife had exerted undue influence over him that resulted in them receiving nothing under his will, while she and her children from her prior marriage received the entire estate. Under Kansas law, a presumption of undue influence arises if the person who is alleged to have exerted the undue influence was in a confidential and fiduciary relationship with the testator and there were suspicious circumstances surrounding the making of the will. In Cresto, the court recognized a number of suspicious circumstances, including that the lawyer who drafted the will was in a romantic relationship with one of the favored beneficiaries; that the lawyer had given the testator a 75 percent discount on his legal bill for drafting the will; that the lawyer who drafted the will had failed to advise local counsel of the romantic relationship; that the plaintiffs, who had been beneficiaries in prior versions of the testator’s will were abruptly, and without notice, disinherited; and that the will provided that even family heirlooms were not to be kept in the family. On this basis, the Supreme Court of Kansas affirmed the ruling of the trial court (which had been reversed by the Court of Appeals) holding the will to be void.
In contrast, in Hart v. Hart, No. WWMCV 146007918S, 2015 WL 3555366 (Conn. Super. Ct. May 11, 2015), a son who received a smaller share of his mother’s estate than under prior iterations of the will, brought a seven count complaint against his brother for, among other things, “interference with an expectation of inheritance.” The court addressed whether Connecticut recognizes such a cause of action, and canvassed existing Connecticut precedent, the Restatement (Second) of Torts, and the torts hornbook Prosser Keeton on Torts, and concluded that interference with an expected inheritance is a valid cause of action. The court made special note of the difference between undue influence and interference with expected inheritance, stating that undue influence focuses on the mind of the testator and the defendant’s control over the testator, regardless of whether a tort has been committed, while interference with an expected inheritance focuses on the defendant’s expectations and independent tortious conduct, such as fraud, duress, defamation, or abuse of fiduciary duty. While recognizing the cause of action generally, the court found that the plaintiff had failed to plead that the defendant had interfered by tortious means, and accordingly failed to state a claim, requiring dismissal of that count.
CONCLUSION
It may be true that in human relations, there is nothing new under the sun, but the legal precedent regarding trust and estate disputes continues to evolve to deal with these relationships. Our jurisprudence continues to try to find ways to impose regularity, predictability and honesty on the most fundamental arena of our lives—family relationships.
Barbara S. Wahl is a partner at Arent Fox LLP law firm and is a litigator who specializes in fiduciary disputes as well as commercial litigation.