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Birmingham Bar Association Bulletin - Winter 2013

Tort Law Ashley L. Neese, Christen D. Butler, and Douglas L. McWhorter Is Alabama Ready to Recognize Tortious Interference with an Inheritance? Dad, an elderly Alabama resident, has two children: Wily and Noble. Noble has dutifully assisted his Dad in the latter’s senior years, while Wily has continually manipulated Dad for his own fi nancial gain. When Dad sought to execute a Will favoring Noble, Wily physically prevented his infi rm father from signing it in the hopes of sharing the estate equally by intestacy. In addition, Wily used a power of attorney signed by Dad to transfer a substantial portion of Dad’s assets into survivorship accounts with himself. At Dad’s subsequent death, Wily claimed the joint accounts by virtue of the survivorship feature and an intestate share of Dad’s remaining assets. Under these facts, would Alabama recognize a cause of action for tortious interference with Noble’s inheritance? Although Alabama courts have not yet recognized tortious interference with an inheritance as a valid cause of action, they have certainly considered it.1 Holt v. First Nat’l Bank of Mobile was the fi rst time that the question of whether to recognize a cause of action for tortious interference with an inheritance was before the Alabama Supreme Court.2 In Holt, daughters of a testator asked the court to acknowledge a cause of action for tortious interference with an inheritance because their stepmother convinced their father to leave property to her instead of executing a codicil that would have left property to his daughters.3 Th e court found that “while courts in several other jurisdictions have recognized that such a right of action exists, the cases in which plaintiff s have been successful on appeal have shown more compelling circumstances than those alleged by these plaintiff s. . . . for the action to lie, the defendant must have used independently tortious means to interfere with the testator’s intent.”4 Th e court went on to cite Pope v. Garrett5 as the best example of such a case where a cause of action did exist.6 Twenty years later, the Alabama Supreme Court again declined to recognize tortious interference with an inheritance as a cause of action.7 In Batchelor, plaintiff s alleged that a defendant prevented an attorney from obtaining the decedent’s signature on a revised will by using a loud and angry voice during a phone call.8 Following the trial court’s dismissal of the plaintiff ’s claims, the Court of Civil Appeals affi rmed the dismissal with an unpublished memorandum of affi rmance.9 Although Batchelor’s procedural history suggests some possible support for recognition of the tort when there is substantial evidence of force, duress, coercion, undue infl uence, or fraud, the Alabama Supreme Court, nonetheless, quashed the writ without expounding on the issue and thereby refused to recognize the tort.10 Kershaw v. Kershaw was the next occasion for the Alabama Supreme Court to consider tortious interference with an inheritance. 11 While the Kershaw court was more concerned with enforcement of an in terrorem clause, it again passed on the opportunity to recognize the tort.12 While discussing a fraud claim in 2006, the District Court for the Middle District of Alabama took judicial notice of the possibility that a legal duty not to interfere with an expectancy might exist based on Holt.13 More recently, in Morris v. Trust 16 Birmingham Bar Association


Birmingham Bar Association Bulletin - Winter 2013
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