Joseph Hart v. David Hart (2015)

MEMORANDUM (Motion to Strike, # 117 Short Calendar, January 26, 2015)

On January 29, 2014, the plaintiff, Joseph Hart, filed a seven-count complaint against the defendants, David Hart, personally and as trustee of the Hart Family Trust, and the Hart Family Trust.   The plaintiff alleges the following facts.   Joseph Hart and David Hart are brothers.   Joseph Hart lives in Atlanta, Georgia, and David Hart lives in Canterbury, Connecticut.   Anna Hart, mother to Joseph Hart, David Hart, and Beriah Hart, also lived in Canterbury.   On October 30, 1979, Anna Hart drafted her last will and testament.   Pursuant to the will, Joseph Hart and David Hart were beneficiaries of the entire rest, residue, and remainder of Anne Hart's estate (the estate), including real property and personal property.¹  Between October 30, 1979, and December 16, 2012, Anna Hart did not make any changes to her estate plan.   Beginning on December 17, 2012, Anna began making changes to her estate plan, all of which resulted in a substantial improvement to David Hart's interest in the estate.

The plaintiff further alleges that on December 17, 2012, Anna Hart executed a purported will (the first purported will).²  The first purported will differed from Anna Hart's previous estate plan in that:  (1) it gave Joseph Hart only a two-acre building lot;  (2) it included Beriah Hart as a beneficiary for the first time;  and (3) it gave the remaining portion of Anna Hart's estate to David Hart. On December 31, 2012, Anna Hart quitclaimed her interest in eight tracts of property for “$1.00 and other valuable consideration,” to David Hart.³ Also on December 31, 2012, Anna Hart quitclaimed her interest in 112 Bennett Pond Road in Canterbury for “$1.00 and other valuable consideration,” to David Hart via a second quitclaim deed, which was drafted by Attorney Prue.⁴ Anna Hart also transferred the following properties to David Hart and the Hart Family Trust:  (1) a 14–acre parcel of land located on Bennett Pond Road;  (2) a 120–acre parcel of land located on Elmdale Road;  (3) a 9.4–acre parcel of land located on Elmdale Road;  (4) a 65–acre parcel of land located on Tracy Road;  and (5) a 0.5–acre parcel of land located at 112 Bennett Pond Road. On December 31, 2012, David Hart quitclaimed to himself, personally and in his capacity as trustee of the Hart Family Trust, the subject properties transferred to him by Anna Hart via the first and second quitclaim deeds.⁵

The plaintiff further alleges that on January 24, 2013, at which time Anna Hart was eighty-nine years old, she executed the second purported will.   This will removed Joseph Hart and Beriah Hart and made David Hart the sole beneficiary of the estate.⁶  Between December 17, 2012, and January 24, 2013, Anna Hart had executed two purported wills and two quitclaim deeds, each increasing David Hart's interest in the estate.   On July 7, 2013, Anna Hart died at the age of ninety.

Counts one, two, four, five, six, and seven, which are not the subject of this motion, allege a constructive trust and unjust enrichment as to all three defendants, and undue influence, conversion, statutory theft, and constructive fraud as to David Hart, personally and as trustee.

Count three, captioned “Interference with an Expectation of Inheritance as to David Hart, personally, and David Hart as Trustee of The Hart Family Trust,” alleges the following facts:  According to Anna Hart's will dated October 30, 1979, Joseph Hart and David Hart were beneficiaries of the entire rest, residue, and remainder of the estate.   David Hart knew that Joseph Hart was the only other beneficiary and that Anna Hart was eighty-nine years old and “of failing physical and mental health.”   Anna Hart was subject to undue influence.   David Hart frequently visited Anna Hart and had the opportunity to exert undue influence and did so by repeatedly requesting that Anna leave the subject properties to him and exclude Joseph from receiving any interest.   Anna Hart transferred her entire interest in the properties to David Hart, who transferred the properties to the trust.   Her original estate plan was that Joseph and David would each receive half of the interest in the subject properties, however, David intentionally prevented Joseph from receiving any interest by orchestrating the previously discussed transfers.

On December 8, 2014, the defendants filed a motion to strike count three of the complaint and a memorandum in support.   The plaintiff filed his objection on December 31, 2014.   The matter was heard at short calendar on January 26, 2015.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)  Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).

“A motion to strike is the proper procedural vehicle ․ to test whether Connecticut is ready to recognize some newly emerging ground of liability ․ [W]hen the motion to strike is being used to test a new cause of action, a trial court should permit the plaintiff to develop a factual basis for the claim ․ Sometimes legal questions require a factual setting within which to be decided.   Just because we have a pleading device called a motion to strike it [should not] be regarded as a straightjacket preventing a proper testing of new legal theories.”  (Citation omitted;  internal quotation marks omitted.)   Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6014139–S (January 30, 2013, Adams, J.T.R.) [55 Conn. L. Rptr. 451].

The defendant argues that the Connecticut Appellate Court and Supreme Court have not recognized interference with an expected inheritance as a valid cause of action.   The plaintiff responds and argues that tortious interference with an expected inheritance has been recognized as a cause of action in Connecticut since 2006, and the third count of the complaint establishes a legally sufficient claim.

This court first addresses the Superior Court decisions cited by the defendants for the proposition that interference with an expected inheritance is not recognized as a cause of action.   In Moore v. Brower, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10–CV–05–4010227–S (June 14, 2006, Munro, J.) [41 Conn. L. Rptr. 681], Judge Munro granted the defendants' motion to strike based on the reasoning that there was no precedent in Connecticut to support the plaintiff's argument that tortious interference was a valid cause of action.   However, Judge Munro suggested in footnote 4 that it is worth considering “whether Connecticut ought to recognize the tort of intentional inference with an inheritance.”  (Emphasis added.)  Id. Judge Munro did not engage in a discussion of this issue because the plaintiff did not brief the issue and “the court [would] not engage in such an analysis without the benefit of full briefing by the parties.”   Id.

The next case to consider is Meyer v. Peck, Superior Court, judicial district of Litchfield, Docket No. CV–07–4006664–S (December 22, 2008, Pickard, J.) [46 Conn. L. Rptr. 817].   In this case the court did not engage in a detailed discussion, but determined that the facts differed from those in Bocian v. Bank of America, Superior Court, judicial district of Hartford, Docket No. CV–06–4019877–S December 8, 2006 Rittenband, J.T.R.) (42 Conn. L. Rptr. 483), which did recognize the cause of action.⁷  There were no facts in Meyer that involved a contract, thus there was nothing “similar to a cause of action for tortious interference with a contractual right.”  Meyer v. Peck, supra, Superior Court, Docket No. CV–07–4006664–S.   The court stated that “[i]n the absence of appellate authority, and in light of the facts alleged in this case, [it was] not prepared to recognize a cause of action for tortious interference with an expected inheritance.”  Id.

In Debus v. Comp., Superior Court, judicial district of Middlesex, Docket No. CV–10–6002356–S (March 9, 2011, Wiese, J.), the court did not decide the issue of whether Connecticut recognizes intentional interference with an expected inheritance because even if there were such a cause of action, the pleading was legally insufficient.   The court observed that while the appellate courts had not recognized the cause of action, two Superior Court decisions had.  Id. “[G]iven the established elements of a cause of action for tortious interference with contractual or beneficial relationships, the anticipated elements of a claim for tortious interference with an expectancy of inheritance are as follows:  (1) the existence of an expected inheritance;  (2) the defendant's knowledge of the expectancy;  (3) tortious conduct by the defendant, such as fraud or undue influence;  and (4) actual damages to the plaintiff resulting from the defendant's tortious conduct.”  Id. The court granted the motion to strike on the ground that the third element was not sufficiently pleaded because the plaintiffs failed to “allege facts supporting their legal conclusion that the defendant intended to interfere with said beneficial relationship and ․ intentionally caused the decedent to change the beneficiary ․ to himself.”  (Internal quotation marks omitted.)  Id.

Whether the tort at issue is a valid cause of action was also not directly addressed in Tyler v. Tyler, Superior Court, judicial district of Fairfield, Docket No. CV–11–5029427–S (August 22, 2013, Sommer, J.).   The plaintiff in that case alleged that he had been “wrongfully deprived of his share of the trust estate of the [d]ecedent.”  Id. Neither party provided case law or statutes to clarify the cause of action but the court determined that it appeared to allege tortious interference with an expected inheritance.  Id. The court then found that such an action would require proof of undue influence and the plaintiff and cross plaintiff failed to establish a material fact as to the allegations of undue influence in order to meet their burden on the motion for summary judgment.  Id. The court, while stating that the plaintiff was “unable to maintain a claim for tortious interference with expectancy of inheritance,” did not determine whether the cause of action was recognized in Connecticut.⁸  Id.

Another recent case, though not cited by the parties, is consistent with the previously discussed cases.   The defendant in Dugan v. Estate of Mariani, Superior Court, judicial district of Waterbury, Docket No. CV–13–6019901–S (September 30, 2014, Roraback, J.) (59 Conn. L. Rptr. 65, 66), moved to strike the count alleging interference with an expected inheritance.   The court determined “that the plaintiff [had] pleaded no facts which would sustain such a cause of action even if the court were to determine that such a cause of action did exist.”  Id., 67.   Therefore, the court declined to “reach the question of whether such a cause of action should properly be found to exist ․” Id.

Only one case cited by the defendant concludes that there is no cause of action for intentional interference with an expected inheritance and analyzes the issue at length.   In Eder v. Eder, Superior Court, judicial district of New Haven, Docket No. CV–13–6036446–S (June 10, 2014, Nazzaro, J.) (58 Conn. L. Rptr. 347, 348), an action arising “out of allegedly wrongful conduct relative to a number of trusts and instruments set up and executed by the plaintiff's parents,” the defendants moved to strike count four, which alleged intentional infliction with an inheritance on the ground that the cause of action did not exist in Connecticut.   The defendants also moved to strike the plaintiff's prayers for punitive damages and attorneys fees relative to count four.  Id., 349.   The court concluded that interference with an expected inheritance is not a valid cause of action.  Id., 349, 352.

First, the Eder court found it compelling that there was no appellate authority holding that such a cause of action exists and the appellate courts had not “engage[d] in an exhaustive and comprehensive analysis of the issue.”   Id., 349.   Next, the court stated that it was uncertain as to “what the contours and scope of the tort would, and should, be.”  Id., 350.   The court was unwilling to outline the potential elements of the action.  Id. Further, the court was “uncertain what the scope of the remedy would be” and whether the Supreme Court would limit remedies.  Id.

Also of concern for the Eder court was the applicability of Hall v. Hall, 91 Conn. 514, 519–20, 100 A. 441 (1917), which involved an action arising out of alleged fraudulent conduct that led to a deprivation of inheritance for the plaintiff.   According to the Eder court, “the [Hall] court construed the complaint as a collateral attack of a judgment of a court of competent jurisdiction [i.e. the probate court]—to which the plaintiff was a party—and not as a cause of action seeking intentional interference with an inheritance.   This was the dispositive rationale, and, therefore, the court's statement that the plaintiff might have stated a good cause of action was pure dicta.”   Id., 351.   In Hall, the Supreme Court determined that if the challenged will had not been determined to be valid by the probate court in a proceeding to which the plaintiff was a party, the complaint “might have stated a good cause of action against the defendants for fraudulently procuring their incapable father to execute a pretended will in their favor, when coupled with the allegation that they had in fact obtained the benefit of it.”  Hall v. Hall, supra, 520.

Of course while dicta is not binding precedent, it is persuasive authority and can influence a lower court's decision.   See Voris v. Molinaro, 302 Conn. 791, 797 n.6, 31 A.3d 363 (2011) (“Although dicta is not binding precedent;  see, e.g., State v. DeJesus, 288 Conn. 418, 454 n.23, 953 A.2d 45 (2008);  [the court] may look to dicta as persuasive authority ․”).  The Superior Court cases cited in this decision that discuss Hall do not rely on Hall as binding precedent, but instead mention Hall in order to demonstrate that the Supreme Court, if it does address the issue, may recognize interference with an expected inheritance as a valid cause of action.

The Eder court also took issue with the justification that the action is recognized in § 774B of the Restatement (Second) of Torts.  Eder v. Eder, supra, 58 Conn. L. Rptr. 351.   Section 774B of the Restatement (Second) of Torts defines tortious interference with inheritance as:  “One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.”   The court found the Restatement to be unpersuasive because of its concern that the Supreme Court has rejected sections of the Restatement in recent years.⁹  Eder v. Eder, supra.   Indeed it is unknown whether the Supreme Court will accept § 774B. The Supreme Court has relied on the Restatement when deciding whether to recognize a new cause of action.  Eder v. Eder, supra, 351 (“It is true that our Supreme Court has often drawn from the Restatement when considering whether it should create or recognize a new cause of action.   See Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996) (relying on Restatement [Second] in recognizing action for bystander emotional distress);  Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982) (relying on Restatement [Second] in recognizing action for invasion of privacy)”).

This court now considers the five Superior Court cases cited by the defendants and the plaintiff that do recognize intentional interference as a valid cause of action.   The discussion of whether there is a cause of action in Connecticut for interference with an expected inheritance in Bocian v. Bank of America, Superior Court, judicial district of Hartford, Docket No. CV–06–4019877–S (December 8, 2006, Rittenband, J.T.R.) (42 Conn. L. Rptr. 483, 484–85), is often cited by later cases.   See Eder v. Eder, supra, 58 Conn. L. Rptr. 347;  Axiotis v. Michalovits, Superior Court, judicial district of Fairfield, Docket No. CV–13–6034754–S (January 9, 2014, Tyma, J.) (57 Conn. L. Rptr. 455, 455);  Ferri v. Powell–Ferri, Superior Court, judicial district of Middlesex, Docket No. CV–11–6006351–S (August 23, 2013, Munro, J.) (56 Conn. L. Rptr. 828);  Debus v. Comp., supra, Superior Court, Docket No. CV–10–6002356–S;  Van Eck v. West Haven Funeral Home, Superior Court, judicial district of New Haven, Docket No. CV–09–5031256–S (August 4, 2010, Zoarski, J.T.R.);  Meyer v. Peck, supra, Superior Court, Docket No. CV–07–4006664–S.   In Bocian, the court acknowledged that no appellate level court in Connecticut had recognized such an action, however, the court did find that the cause of action was valid.  Bocian v. Bank of America, supra, 484.   The court also stated that the Supreme Court's inaction on the topic did not mean the issue would not be taken up in the future and contemplated that the Supreme Court could recognize the tort upon review of the Bocian case.   Id., 484 n.1.

In recognizing a cause of action for tortious interference with an expected inheritance, the Bocian court relied on the action's similarity to tortious interference with a contractual right.  Id., 484.   The court was also satisfied that the elements of tortious interference with an expected inheritance were sufficiently alleged in the complaint.  Id., 485.   Those elements are:  “(1) that defendant intentionally interfered with the giving or leaving of property to the plaintiff;  (2) that defendant used unlawful means to accomplish the interference or had an improper purpose;  and (3) proof of damages.”  Id. In Bocian, the plaintiff alleged that the defendant knew or should have known of the plaintiff's interest in the subject property and trust as a beneficiary, and the defendant acted purposely, knowingly, and intentionally to mislead the decedent as to the mortgage she executed, in turn encumbering the property and depriving the plaintiff of her full inheritance.   Id.

The cause of action was also recognized in Van Eck v. West Haven Funeral Home, supra, Superior Court, Docket No. CV–09–5031256–S.   The plaintiff alleged that the defendant “tortiously interposed itself into the probate proceedings, requiring the expenditure of funds by the trustee.”  Id. The court then found “that the allegations of the claim [were] one of tortious interference with an expected inheritance.”  Id. The court, however, granted the defendant's motion for summary judgment holding that “there [was] no factual dispute as to the second element of tortious interference, as the facts [did] not support that the defendant used unlawful means or an improper purpose to interfere with the plaintiff's inheritance rights.”  Id.

DePasquale v. Hennessey, Superior Court, judicial district of Hartford, Docket No. CV–10–6007472–S (August 27, 2010, Peck, J.) [50 Conn. L. Rptr. 605], recognized interference with an expected inheritance as a valid cause of action and held that the plaintiff's had sufficiently alleged the cause of action.   First, the court relied on the previously discussed dicta in Hall v. Hall, supra, 91 Conn. 519–20.   Second, the court found it persuasive that the Restatement (Second) of Torts § 774B provides for a claim of tortious interference with an inheritance.  DePasquale v. Hennessey, supra, Superior Court, Docket No. CV–10–6007472–S.   Third, the court relied on the fact that the action is “consistent with other causes of actions and remedies that have been recognized under Connecticut law and public policy, including the established remedy of imposing a constructive trust to protect the interests of persons who have no more than an expectancy of receiving a benefit, such as when a decedent is prevented, because of fraud, from making a particular testamentary disposition ․ [T]he tort of interference with an expectancy of inheritance has been recognized by numerous other jurisdictions.”  Id. Further, the court came to its conclusion without any discussion of the Bocian case, despite the availability of that court's reasoning and analysis.

Interference with an expected inheritance was also recognized as a valid cause of action in Vechiola v. Fasanella, Superior Court, judicial district of Fairfield, Docket No. CV–10–5029378–S (February 7, 2013, Radcliffe, J.) (55 Conn. L. Rptr. 525, 527).   The court relied on the Restatement's recognition of such an action in § 774B. Id. The case involved Totten Trusts created by the decedent, naming the plaintiff as the beneficiary.¹⁰  Id., 526.   The defendant, acting pursuant to powers of attorney executed by the decedent prior to her death, withdrew the funds in the Totten Trusts and closed the accounts.  Id. The money was deposited in the decedent's bank accounts and remained her assets until death.  Id., 526–27.  “In setting up the trust accounts, [the decedent was] conclusively presumed to have intended that the monies be received by the named beneficiary at the time of her death ․ If the [d]efendant, ․ acted contrary to her wishes and desires, notwithstanding the general Power of Attorney, then the trier of fact could find that his conduct was tortious.”  (Citation omitted.)  Id., 527.   The court denied the defendant's motion for summary judgment on the ground that there was a genuine issue of material fact “given the presumption which attaches to a Totten Trust, and that the [d]efendant [stood] to benefit from the closing of the accounts as a beneficiary under the [w]ill of [the decedent] ․” Id., 528.

Furthermore, in Axiotis v. Michalovits, supra, 57 Conn. L. Rptr. 455, 455, the plaintiff alleged that the defendants, his brother and sister-in-law, “tortiously interfered with his expected inheritance from his father.”   The issue before the court was “whether Connecticut recognizes a cause of action for tortious interference with an expected inheritance, and whether the plaintiff [had] alleged sufficiently detailed facts in support of his fraud count.”  Id. The court noted that the Supreme Court “referred to such an action in Hall v. Hall, 91 Conn. 514, 100 A. 441 (1917), but did not recognize such an action.”  Id. The court then discussed Bocian and DePasquale, finding both persuasive, and concluded that Connecticut “would recognize a cause of action for intentional interference with an inheritance.”  Id., 456.   The court's reasoning was also influenced by the recognition of the action in the Restatement (Second) of Torts.¹¹  Id. The defendants' motion to strike the tortious interference with an expected inheritance count was denied.  Id.

Judge Munro's discussion in Ferri v. Powell–Ferri, supra, 56 Conn. L. Rptr. 828, is instructive on the present issue as Eder relied on Judge Munro's previous conclusion in Moore.¹²  The issue in Ferri, was not whether to recognize tortious interference with an expected inheritance, but instead “whether to recognize the extension of [tortious interference] from a business expectancy to an equitable claim in a dissolution of marriage.”  Id., 837.   Nevertheless, Judge Munro took the opportunity to clarify her position on the issue of interference with an expected inheritance, which she had previously addressed in Moore, prior to Bocian.  Id., 839.   In Ferri, Judge Munro quoted Bocian and stated “[i]t is true that no Connecticut Appellate or Supreme Court decisions have been rendered on [the issue of recognizing the claim of tortious interference with an inheritance], which, of course, does not mean the Supreme Court will not recognize this tort.”  (Internal quotation marks omitted.)  Id. “Despite the lack of case law, at least one court in the state has recognized the tort of tortious interference with an inheritance, stating that [s]uch a cause of action is very similar if not identical to a recognized cause of action in Connecticut;  tortious interference with a contractual right ․ Further, the Restatement of Torts does outline such an action.”  (Citation omitted;  internal quotation marks omitted.)  Id. Ultimately, Judge Munro concluded that given the facts of the case in Ferri, “there [was] no parallel recognition by the Restatement” of interference with an equitable interest like the recognition described for interference with an expected inheritance.  Id.

This court considers the previously discussed cases and is inclined to conclude that interference with an expected inheritance is a valid cause of action.   This decision will first address the reasons why this court may recognize interference with an expected inheritance based on a particular set of facts and for public policy reasons.   Then, this decision will distinguish a claim of interference with an expected inheritance from a claim of undue influence, addressing the elements of each cause of action and the available remedies.   This discussion will demonstrate that the actions differ in a way that does not make interference with an expected inheritance duplicative of an undue influence claim, and there is a need for recognition of interference of an expected inheritance as an independent cause of action because a necessary element of the action is tortious conduct, which is not part of an undue influence claim.   Finally, this decision will examine the facts alleged by the plaintiff in order to determine the legal sufficiency of the claim of interference with an expected inheritance as it is pleaded in the complaint and conclude that the plaintiff's claim is insufficient for failure to plead tortious conduct.

Preliminarily, this court recognizes that neither the Appellate Court nor the Supreme Court has formally recognized interference with an expected inheritance as a cause of action.   However, the fact that the appellate level courts have not discussed and ruled on the issue does not mean that the action is not valid.   Undoubtedly, the Supreme Court has the power to recognize a new cause of action, however, the Superior Courts are first to encounter these issues and must make a determination that will potentially be addressed by the Supreme Court.¹³  See Ferri v. Powell–Ferri, Superior Court, judicial district of Middlesex, Docket No. CV–11–6006351–S (August 23, 2013, Munro, J.) (56 Conn. L. Rptr. 828, 836, 838–39).  “[I]f a court denies a motion to strike a novel action, the plaintiff is not able to fully develop her facts/action and therefore when reviewing the issue the appellate authority does not have a well-developed record.   As Judge Corradino wrote:  ‘One whole purpose of motions to strike is to determine whether our jurisdiction should or should not recognize new causes of action.   Also appellate courts will often not be best positioned to determine whether our courts should recognize a new cause of action if trial courts by granting motions to strike do not allow full factual records to be developed.   So certainly there is no a priori reason why a motion to strike should be granted based on the fact that most lower courts have not permitted this type of claim to be made and the appellate courts have not given their imprimatur to it.’   Falconieri v. Choquette, Superior Court, judicial district of New Haven, Docket No. CV 96 0383034 (September 16, 1996, Corradino, J.) (17 Conn. L. Rptr. 658, 659).”  Id. In short, simply because the tort has not yet been recognized at the appellate level does not mean the appellate courts would not find a valid cause of action.

The reasoning and analysis of the Superior Court cases recognizing interference with an expected inheritance is persuasive.   The tort is similar to tortious interference with a contractual right and is outlined in the Restatement.   Moreover, there is a difference between an action arising from a will contest concerning the validity or execution of the will and an action arising from a sibling or other party, with knowledge of an inheritance, interfering with receipt of the inheritance by independent tortious means.   The first situation involves a challenge to a will such as undue influence or fraud on the testator, but the second action is more appropriately recognized as interference with an expected inheritance.   As a matter of public policy, the facts involved in an action of interference with an expected inheritance are distinct from other actions and thus lend themselves to recognition of a distinct tort.

Undue influence and interference with an expected inheritance are causes of action consisting of different elements and factors.   Undue influence is a will contest, while interference with an expected inheritance is a tort.   Ultimately, different evidence must be produced by the parties to prove or disprove each cause of action.   As previously discussed, interference with an expected inheritance focuses on the defendant's knowledge of a beneficiary's expected inheritance and tortious conduct resulting in damages to the beneficiary.   See Debus v. Comp., supra, Superior Court, Docket No. CV–10–6002356–S.   Interference with an expected inheritance must be proven by a preponderance of the evidence.   See Madigan v. Housing Authority, 156 Conn.App. 339, 362 (2015) (“the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt;  a mere preponderance of the evidence is sufficient”);  Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992), overruled on other grounds by Kaczynski v. Kaczynski, 294 Conn. 121, 981 A.2d 1068 (2009).

“Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his [or her] free agency and constrain him [or her] to do something other than he [or she] would do under normal control ․ It is stated generally that there are four elements of undue influence:  (1) a person who is subject to influence;  (2) an opportunity to exert undue influence;  (3) a disposition to exert undue influence;  arid (4) a result indicating undue influence ․ Relevant factors include age and physical and mental condition of the one alleged to have been influenced, whether he [or she] had independent or disinterested advice in the transaction ․ consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his [or her] predisposition to make the transfer in question, the extent of the transfer in relation to his [or her] whole worth ․ failure to provide for all of his [or her] children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties.”  (Internal quotation marks omitted.)  Tyler v. Tyler, 151 Conn.App. 98, 105–06, 93 A.3d 1179 (2014);  see also Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006).

“Undue influence must be proven by clear and convincing evidence.   Proof of a plan, design, or disposition to gain control and influence testamentary provisions generally may be used ․ The courts have held that direct and positive proof is not needed to prove undue influence.   Circumstantial proof such as family relations, the testator's physical and mental condition and dependence upon others can be used.   The contesting party has the burden of laying a foundation of such material facts as fairly and convincingly lead to a conclusion of undue influence.   There must be proof not only of undue influence but also that its operative effect was to cause the testator to make a[w]ill which did not express actual testamentary desires.   The contesting party must lay down a factual foundation that, but for the actions of the party claiming under the [w]ill, the testator would have made a different disposition.”   (Footnotes omitted.)   R. Folsom, Probate Litigation in Connecticut (2d Ed.2015) § 1:15, pp. 1–31 through 1–33.

Undue influence focuses on the mind of the testator at the time of execution of the will and the defendant's control or power over the testator, irrespective of whether the defendant's conduct is tortious.   Interference with an expected inheritance, however, focuses on the defendant's knowledge of an expected inheritance and independent tortious conduct involving the beneficiary's inheritance.

Tortious conduct includes “fraud, duress, defamation or tortious abuse of fiduciary duty, or ․ forg[ing], alter[ing] or suppress[ing] a will or a document making a gift.”   4 Restatement (Second), Torts § 774B, comment (c), p. 58–59 (1979).  “In the absence of conduct independently tortious, the cases to date have not imposed liability under the rule stated in [§ 774B].” Id., comment (c), p. 59.   A claim of undue influence itself does not require a finding of tortious conduct, therefore, an interference with an expected inheritance claim based on allegations of undue influence must also include an allegation of independent tortious conduct.   A claim of interference with an expected inheritance that lacks an allegation of tortious conduct and merely alleges undue influence would allow the plaintiff to essentially bring an undue influence claim under a different name.   Such a result would be contrary to public policy.

By way of a remedy, with undue influence, the effect is that “only those provisions of the will which result from the exercise of undue influence ․ are void.”  Pepin v. Ryan, 133 Conn. 12, 17–18, 47 A.2d 846 (1946), citing Harrison's Appeal, 48 Conn. 202, 204 (1880), Livingston's Appeal, 63 Conn. 68, 78, 26 A. 470 (1893);  see also 1 Page, Law of Wills (2d Ed.2003) § 15.12, pp. 860–61.   On the other hand, the remedy for interference with an expected inheritance, does not necessarily affect the will because the will does not have to be set aside.  “[A] claim of interference with an expectancy of inheritance is consistent with other causes of action and remedies that have been recognized under Connecticut law and public policy, including the established remedy of imposing a constructive trust to protect the interests of persons who have no more than an expectancy of receiving a benefit, such as when a decedent is prevented, because of fraud, from making a particular testamentary disposition.”  DePasquale v. Hennessey, supra, Superior Court, Docket No. CV–10–6007472–S.  “The normal remedy for the conduct covered by ․ [§ 774B] is an action in tort for the loss suffered by the one deprived of the legacy or gift.  (See § 774A, on damages [for interference with a contract or prospective contractual relation] ).   If, however, the defendant has himself acquired the benefits of the legacy or gift, he is unjustly enriched at the expense of the plaintiff and a remedy is also afforded in restitution.   This may consist of holding the wrongdoer to a constructive trust, imposing an equitable lien or subjecting him to a simple monetary judgment to the extent of the benefits thus tortiously acquired ․” 4 Restatement (Second), supra, § 774B, comment (e), p. 59.

Comment (d) to § 774B of the Restatement (Second) of Torts provides that:  “[a]n important limitation upon the rule stated in this Section is that there can be recovery only for an inheritance or gift that the other would have received but for the tortious interference of the actor.   This means that, as in other cases involving recovery for loss of expectancies (see § 912 and Comments), there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator or that the gift would have been made inter vivos if there had been no such interference.”  “American Jurisprudence does not discuss the tort directly, but states that ‘[for the purpose of an action in tort, “property” may include ․ the expectancy of an inheritance, although there is contrary authority including authority holding that a claim for tortious interference with an anticipated inheritance may be unavailable when an adequate probate remedy exists.’  ․ Prosser Keeton on Torts describes the gradual evolution of the tort of ‘interference with an expected gift or a legacy under the will,’ stating that early courts did not allow it on the theory that the testator could have later changed the gift or bequest even absent the fraudulent conduct, but that later courts permitted the tort with sufficient evidence of ‘a high degree of probability that the testator would have made or changed a bequest.’  ․ It goes on to note that ‘[l]ogically the damages recovered should be the value of the chance of benefit rather than the full value of the legacy.’  “ (Citations omitted.)  Axiotis v. Michalovits, supra, 57 Conn. L. Rptr. 455, 456 n.3.¹⁴

Additionally, punitive damages may be available for interference with an expected inheritance if the defendant's tortious conduct rises to the necessary level.  “To furnish a basis for recovery of punitive damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought ․ If awarded, punitive damages are limited to the costs of litigation less taxable costs, but, within that limitation, the extent to which they are awarded is in the sole discretion of the trier ․ Limiting punitive damages to litigation expenses, including attorneys fees, fulfills the salutary purpose of fully compensating a victim for the harm inflicted on him while avoiding the potential for injustice which may result from the exercise of unfettered discretion by a jury ․ [The Supreme Court has] long held that in a claim for damages proof of the expenses paid or incurred affords some evidence of the value of the services, and if unreasonableness in amount does not appear from other evidence or through application of the trier's general knowledge of the [subject matter], its reasonableness will be presumed.”  (Internal quotation marks omitted.)  Hylton v. Gunter, 313 Conn. 472, 486 n.14, 97 A.3d 970 (2014).

The ground specified in the defendants' motion is that count three fails to state a cause of action.   Thus, as discussed by the previous cases that recognize the cause of action, this court must look to whether the plaintiff has sufficiently alleged the following elements:  (1) the existence of an expected inheritance;  (2) the defendant's knowledge of the expectancy;  (3) tortious conduct by the defendant;  and (4) actual damages to the plaintiff resulting from the defendant's tortious conduct.   The plaintiff alleges that he had an expected inheritance from Anna's estate and that the defendant David, in his personal capacity and as trustee, had knowledge of this expectancy.   The plaintiff also alleges that David asserted undue influence over Anna. In addition, the plaintiff alleges damages of interest he would have received on the properties Anna transferred to David.

The plaintiff, however, has failed to allege that the defendant interfered by tortious means.   At best, the plaintiff alleges that the testator was unduly influenced, however, there is no allegation that such influence was committed by an action such as “fraud, duress, defamation or tortious abuse of fiduciary duty, or [that the defendant] ․ forged, altered or suppressed a will or a document making a gift.”   4 Restatement (Second), supra, § 774B, comment (e), p. 59.   As previously discussed, because undue influence focuses on the mind of the testator and the defendant's control or power over the testator, undue influence in and of itself does not necessarily involve tortious conduct.   In other words, a defendant can unduly influence a testator through means that are not tortious.   A claim of interference with an expected inheritance, however, must plead tortious conduct as it is one of the necessary elements.¹⁵  Therefore, the plaintiff has not sufficiently alleged the tortious conduct element of interference with an expected inheritance and the claim is legally insufficient.

CONCLUSION

For the foregoing reasons, even if this court was to find that compelling reasons exist to recognize interference with an expected inheritance as a valid cause of action, the plaintiff has not sufficiently alleged such cause of action.   Accordingly, the court grants the defendant's motion to strike the third count of the complaint.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. Anna Hart specifically disinherited Beriah Hart..  FN1. Anna Hart specifically disinherited Beriah Hart.

FN2. “The first purported will, which upon information and belief was drafted by Attorney Patrick Prue, was witnessed by Jessica G. DeTullio and Carol A. Bellman, and was subscribed and sworn before Attorney Prue.”.  FN2. “The first purported will, which upon information and belief was drafted by Attorney Patrick Prue, was witnessed by Jessica G. DeTullio and Carol A. Bellman, and was subscribed and sworn before Attorney Prue.”

FN3. The complaint describes the eight tracts of property.   The first quitclaim deed was drafted by Attorney Prue, witnessed by Jessica DeTullio, and acknowledged by Attorney Prue..  FN3. The complaint describes the eight tracts of property.   The first quitclaim deed was drafted by Attorney Prue, witnessed by Jessica DeTullio, and acknowledged by Attorney Prue.

FN4. The complaint contains a description of the property..  FN4. The complaint contains a description of the property.

FN5. The transfer occurred through the third and fourth quitclaim deeds.   The third quitclaim deed contained the same attached Schedule A as the first quitclaim deed.   The fourth quitclaim deed contained the same Schedule A as the second quitclaim deed..  FN5. The transfer occurred through the third and fourth quitclaim deeds.   The third quitclaim deed contained the same attached Schedule A as the first quitclaim deed.   The fourth quitclaim deed contained the same Schedule A as the second quitclaim deed.

FN6. The will was witnessed by Jessica G. DeTullio and Carol A. Bellman, and subscribed and sworn before Attorney Prue..  FN6. The will was witnessed by Jessica G. DeTullio and Carol A. Bellman, and subscribed and sworn before Attorney Prue.

FN7. Bocian v. Bank of America, supra, Superior Court, Docket No. CV–06A019877–S, will be discussed subsequently in this decision..  FN7. Bocian v. Bank of America, supra, Superior Court, Docket No. CV–06A019877–S, will be discussed subsequently in this decision.

FN8. “The action, if it was permitted in this state, would therefore require proof of undue influence.”  Tyler v. Tyler, supra, Superior Court, Docket No. CV–11–5029427–S..  FN8. “The action, if it was permitted in this state, would therefore require proof of undue influence.”  Tyler v. Tyler, supra, Superior Court, Docket No. CV–11–5029427–S.

FN9. The cases cited by Eder in which the Restatement was not followed did not involve interference with an expected inheritance or a similar cause of action.   See Ace Equipment Sales, Inc. v. Buccino, 273 Conn. 217, 224 n.5, 869 A.2d 625 (2005) (declining to follow § 843 of the Restatement concerning riparian rights);  Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 483, 823 A.2d 1202 (2003) (declining to follow § 321 of the Restatement concerning duty to act when prior conduct is found to be dangerous)..  FN9. The cases cited by Eder in which the Restatement was not followed did not involve interference with an expected inheritance or a similar cause of action.   See Ace Equipment Sales, Inc. v. Buccino, 273 Conn. 217, 224 n.5, 869 A.2d 625 (2005) (declining to follow § 843 of the Restatement concerning riparian rights);  Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 483, 823 A.2d 1202 (2003) (declining to follow § 321 of the Restatement concerning duty to act when prior conduct is found to be dangerous).

FN10. “A Totten Trust, euphemistically referred to as a poor man's will, represents an expected inheritance by the named beneficiary on the deposit account.”  Vechiola v. Fasanella, supra, 55 Conn. L. Rptr. 527..  FN10. “A Totten Trust, euphemistically referred to as a poor man's will, represents an expected inheritance by the named beneficiary on the deposit account.”  Vechiola v. Fasanella, supra, 55 Conn. L. Rptr. 527.

FN11. It is worth noting that the court mentioned DiMaria v. Silvester, United States District Court, Docket No. 3:97CV1498 (AVC) (D.Conn. July 2, 1999), in which the federal court dismissed the third count of the complaint for failure to state a cause of action, concluding that “Connecticut does not recognize a cause of action for intentional interference with an inheritance.”  (Internal quotation marks omitted.)   Axiotis v. Michalovits, supra, 57 Conn. L. Rptr. 456.   The Axiotis court instead relied on Superior Court opinions that did recognize the cause of action.  Id..  FN11. It is worth noting that the court mentioned DiMaria v. Silvester, United States District Court, Docket No. 3:97CV1498 (AVC) (D.Conn. July 2, 1999), in which the federal court dismissed the third count of the complaint for failure to state a cause of action, concluding that “Connecticut does not recognize a cause of action for intentional interference with an inheritance.”  (Internal quotation marks omitted.)   Axiotis v. Michalovits, supra, 57 Conn. L. Rptr. 456.   The Axiotis court instead relied on Superior Court opinions that did recognize the cause of action.  Id.

FN12. It is worth repeating that Judge Munro questioned “whether Connecticut ought to recognize the tort of intentional inference with an inheritance,” but did not engage in a discussion of this issue because the plaintiff did not brief the issue.  Moore v. Brower, supra, Superior Court, Docket No. X10–CV–05–4010227–S..  FN12. It is worth repeating that Judge Munro questioned “whether Connecticut ought to recognize the tort of intentional inference with an inheritance,” but did not engage in a discussion of this issue because the plaintiff did not brief the issue.  Moore v. Brower, supra, Superior Court, Docket No. X10–CV–05–4010227–S.

FN13. “It has been determined that the Supreme Court does have the authority to recognize a new tort cause of action.  ‘It cannot be doubted that we have the inherent power to recognize new tort causes of action, whether derived from a statutory provision;  see e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (creating damages action under Connecticut Unfair Trade Practice Act for violations of Connecticut Unfair Insurance Practices Act);  or rooted in the common law.   See, e.g., Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980) (recognizing torts of intentional and negligent infliction of emotional distress).’  Binette v. Sabo, 244 Conn. 23, 33, 710 A.2d 688 (1988).   Of course, before the matter finds itself at the Supreme Court it is confronted in the first instance by the trial court, in ruling on the motion to strike.”  Ferri v. Powell–Ferri, Superior Court, judicial district of Middlesex, Docket No. CV–11–6006351–S (August 23, 2013, Munro, J.) (56 Conn. L. Rptr. 828, 836)..  FN13. “It has been determined that the Supreme Court does have the authority to recognize a new tort cause of action.  ‘It cannot be doubted that we have the inherent power to recognize new tort causes of action, whether derived from a statutory provision;  see e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (creating damages action under Connecticut Unfair Trade Practice Act for violations of Connecticut Unfair Insurance Practices Act);  or rooted in the common law.   See, e.g., Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980) (recognizing torts of intentional and negligent infliction of emotional distress).’  Binette v. Sabo, 244 Conn. 23, 33, 710 A.2d 688 (1988).   Of course, before the matter finds itself at the Supreme Court it is confronted in the first instance by the trial court, in ruling on the motion to strike.”  Ferri v. Powell–Ferri, Superior Court, judicial district of Middlesex, Docket No. CV–11–6006351–S (August 23, 2013, Munro, J.) (56 Conn. L. Rptr. 828, 836).

FN14. Other jurisdictions have recognized interference with an expected inheritance as a cause of action but have also held that probate remedies must be exhausted before an interference with an expected inheritance action can be brought.   See Widdig v. Watkins, Docket No. 13–CA–3531, 2013–Ohio–3858 (August 22, 2013);  Beckwith v. Dahl, 205 Cal.App.4th 1039, 1052, 141 Cal.Rptr.3d 142 (2012);  Grimes v. Grimes, 173 Ohio App.3d 537, 546, 879 N.E.2d 247 (2007);  Gianella v. Gianella, 234 S.W.3d 526, 530 (Mo.App.2007);  Gannuto v. Cannici, 397 N.J.Super. 231, 240, 936 A.2d 1015 (2007);  Schilling v. Hennera, 952 So.2d 1231, 1236 (Fla.App.2007);  Peralta v. Peralta, 139 N.M. 231, 233, 131 P.3d 81 (2005).  “The Munn [v. Briggs, 185 Cal.App.4th 578, 110 Cal.Rptr.3d 783 (2010),] court looked to decisions from other jurisdictions in an attempt to balance the competing goals of providing a remedy to injured parties and honoring the strictures of [the] probate code ․ The court noted that [a] majority of the states which have adopted the tort of interference with an inheritance have achieved such a balance by prohibiting a tort action to be brought where the remedy of a will contest is available and would provide the injured party with adequate relief ․ By applying a similar last recourse requirement to the tort in California, the integrity of the probate system is protected because where a probate remedy is available, it must be pursued.   In addition, the only plaintiffs who will be able to utilize the tort are those who lack an adequate probate remedy because of the interference of another.   In a sense, the interfering tortfeasor has obtained the benefit of the testamentary intent rule by committing a tort against a third party ․ Allowing those so harmed to bring a tort action still would give defendants all the benefits that the testamentary intent rule calls for them to receive.   Once possessed of those benefits, however, defendants would be liable to respond in damages for torts that they may have committed—a separate legal inquiry with its own societal justifications.”  (Citations omitted;  internal quotation marks omitted.)   Beckwith v. Dahl, supra, 205 Cal.App.4th 1052.Schilling v. Herrera discussed an exception to the exhaustion requirement “where the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.”  Schilling v. Herrera, supra, 952 So.2d 1236.  “[E]xtrinsic fraud, or in other words, fraud alleged in the prevention of the will contest, as opposed to in the making of the will, would appear to be the type of circumstance that would preclude relief in the probate court.”  Id., 1236–37.  “[T]he purpose behind this tort is to protect the testator, not the beneficiary:  Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator's interest rather than the disappointed beneficiary's expectations.   The fraud, duress, undue influence, or other conduct required for this tort is directed at the testator.   The beneficiary is not directly defrauded or unduly influenced;  the testator is.   Thus, the common law court has created this cause of action not primarily to protect the beneficiary's inchoate rights, but to protect the deceased testator's former right to dispose of property freely and without improper interference.   In a sense, the beneficiary's action is derivative of the testator's rights.”  Id., 1234.  “[I]n a situation where the estate has been depleted so that there could be no remedy in probate, proceeding in a civil action is appropriate.”  Peralta v. Peralta, supra, 139 N.M. 233.Nevertheless, not all states require the plaintiff to first bring a claim in the probate court.   For example, in Plimpton v. Gerrard, 668 A.2d 882, 887 (Me.1995), the Supreme Judicial Court of Maine stated that the probate court and the Superior Court had concurrent jurisdiction, and although the plaintiff could have brought an action in the probate court to have the will declared invalid, the Superior Court had jurisdiction to hear an action requesting alternative relief in the form of damages for interference with an expected inheritance.   In order to obtain an adequate remedy in the probate court, the plaintiff in Plimpton v. Gerrard would have had to challenge the validity of the will and then obtain a personal representative to sue on behalf of the estate to impose a constructive trust.   See Plimpton v. Gerrard, supra, 887.   The inheritance at issue would then have been part of the estate again and the previous will, naming the plaintiff as the sole beneficiary, would have to be reinstated and probated or the laws of intestacy would apply.   See id.  “The theoretical possibility of adequate relief in the [p]robate [c]ourt does not compel [the plaintiff] to go there to pursue his tortious interference claim.   The law provides concurrent jurisdiction in the [p]robate [c]ourt and the Superior Court for [the plaintiff's] claim of undue influence ․ The very concept of concurrent jurisdiction is inconsistent with a preference for one jurisdiction over another ․ In civil cases in which damages are sought, a plaintiff has the right to a jury trial [under the Maine Constitution, art.   I, § 20].  [The plaintiff] cannot get a jury trial in the [p]robate [c]ourt.”  (Citation omitted.)  Plimpton v. Gerrard, 668 A.2d 882, 887 (Me.1995) (in which the plaintiff sought “alternative relief in the form of damages for the defendant's alleged interference with his expectancy to inherit his parents' homestead real estate”).   Connecticut courts, however, have not addressed whether adequate probate remedies must be pursued before an interference with an expected inheritance claim may be brought..  FN14. Other jurisdictions have recognized interference with an expected inheritance as a cause of action but have also held that probate remedies must be exhausted before an interference with an expected inheritance action can be brought.   See Widdig v. Watkins, Docket No. 13–CA–3531, 2013–Ohio–3858 (August 22, 2013);  Beckwith v. Dahl, 205 Cal.App.4th 1039, 1052, 141 Cal.Rptr.3d 142 (2012);  Grimes v. Grimes, 173 Ohio App.3d 537, 546, 879 N.E.2d 247 (2007);  Gianella v. Gianella, 234 S.W.3d 526, 530 (Mo.App.2007);  Gannuto v. Cannici, 397 N.J.Super. 231, 240, 936 A.2d 1015 (2007);  Schilling v. Hennera, 952 So.2d 1231, 1236 (Fla.App.2007);  Peralta v. Peralta, 139 N.M. 231, 233, 131 P.3d 81 (2005).  “The Munn [v. Briggs, 185 Cal.App.4th 578, 110 Cal.Rptr.3d 783 (2010),] court looked to decisions from other jurisdictions in an attempt to balance the competing goals of providing a remedy to injured parties and honoring the strictures of [the] probate code ․ The court noted that [a] majority of the states which have adopted the tort of interference with an inheritance have achieved such a balance by prohibiting a tort action to be brought where the remedy of a will contest is available and would provide the injured party with adequate relief ․ By applying a similar last recourse requirement to the tort in California, the integrity of the probate system is protected because where a probate remedy is available, it must be pursued.   In addition, the only plaintiffs who will be able to utilize the tort are those who lack an adequate probate remedy because of the interference of another.   In a sense, the interfering tortfeasor has obtained the benefit of the testamentary intent rule by committing a tort against a third party ․ Allowing those so harmed to bring a tort action still would give defendants all the benefits that the testamentary intent rule calls for them to receive.   Once possessed of those benefits, however, defendants would be liable to respond in damages for torts that they may have committed—a separate legal inquiry with its own societal justifications.”  (Citations omitted;  internal quotation marks omitted.)   Beckwith v. Dahl, supra, 205 Cal.App.4th 1052.Schilling v. Herrera discussed an exception to the exhaustion requirement “where the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.”  Schilling v. Herrera, supra, 952 So.2d 1236.  “[E]xtrinsic fraud, or in other words, fraud alleged in the prevention of the will contest, as opposed to in the making of the will, would appear to be the type of circumstance that would preclude relief in the probate court.”  Id., 1236–37.  “[T]he purpose behind this tort is to protect the testator, not the beneficiary:  Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator's interest rather than the disappointed beneficiary's expectations.   The fraud, duress, undue influence, or other conduct required for this tort is directed at the testator.   The beneficiary is not directly defrauded or unduly influenced;  the testator is.   Thus, the common law court has created this cause of action not primarily to protect the beneficiary's inchoate rights, but to protect the deceased testator's former right to dispose of property freely and without improper interference.   In a sense, the beneficiary's action is derivative of the testator's rights.”  Id., 1234.  “[I]n a situation where the estate has been depleted so that there could be no remedy in probate, proceeding in a civil action is appropriate.”  Peralta v. Peralta, supra, 139 N.M. 233.Nevertheless, not all states require the plaintiff to first bring a claim in the probate court.   For example, in Plimpton v. Gerrard, 668 A.2d 882, 887 (Me.1995), the Supreme Judicial Court of Maine stated that the probate court and the Superior Court had concurrent jurisdiction, and although the plaintiff could have brought an action in the probate court to have the will declared invalid, the Superior Court had jurisdiction to hear an action requesting alternative relief in the form of damages for interference with an expected inheritance.   In order to obtain an adequate remedy in the probate court, the plaintiff in Plimpton v. Gerrard would have had to challenge the validity of the will and then obtain a personal representative to sue on behalf of the estate to impose a constructive trust.   See Plimpton v. Gerrard, supra, 887.   The inheritance at issue would then have been part of the estate again and the previous will, naming the plaintiff as the sole beneficiary, would have to be reinstated and probated or the laws of intestacy would apply.   See id.  “The theoretical possibility of adequate relief in the [p]robate [c]ourt does not compel [the plaintiff] to go there to pursue his tortious interference claim.   The law provides concurrent jurisdiction in the [p]robate [c]ourt and the Superior Court for [the plaintiff's] claim of undue influence ․ The very concept of concurrent jurisdiction is inconsistent with a preference for one jurisdiction over another ․ In civil cases in which damages are sought, a plaintiff has the right to a jury trial [under the Maine Constitution, art.   I, § 20].  [The plaintiff] cannot get a jury trial in the [p]robate [c]ourt.”  (Citation omitted.)  Plimpton v. Gerrard, 668 A.2d 882, 887 (Me.1995) (in which the plaintiff sought “alternative relief in the form of damages for the defendant's alleged interference with his expectancy to inherit his parents' homestead real estate”).   Connecticut courts, however, have not addressed whether adequate probate remedies must be pursued before an interference with an expected inheritance claim may be brought.

FN15. A claim of interference with an expected inheritance may involve undue influence, resulting in the testator being induced to make or not make a bequest or gift, but the undue influence must also consist of tortious conduct (fraud, duress, defamation, etc.) in order to meet the necessary element and be consistent with public policy..  FN15. A claim of interference with an expected inheritance may involve undue influence, resulting in the testator being induced to make or not make a bequest or gift, but the undue influence must also consist of tortious conduct (fraud, duress, defamation, etc.) in order to meet the necessary element and be consistent with public policy.

Calmar, Harry E., J.