In Jackson Walker, LLPO v. Kinsel, Lesey and E.A. Kinsel owned a ranch, and when E.A. died, he divided his half between his children and Lesey. No. 07-13-00130-CV, 2015 Tex. App. LEXIS 3586 (Tex. App.—Amarillo April 10, 2015, pet. filed). Lesey owned 60% at that point. Lesey placed her interest into an intervivos trust, which provided that upon her death, her interests would pass to E.A.’s children. Lesey became frail and moved near a niece, Lindsey, and nephew, Oliver. Lindsey and Oliver referred Lesey to an attorney to assist in drafting a new will. The attorney informed E.A.’s children that Lesey needed to sell the ranch to pay for her care. At that time, Lesey had approximately $1.4 million in liquid assets and did not need to sell the ranch. Not knowing Lesey’s condition, E.A.’s children agreed to sell, and the ranch was sold. Lesey’s $3 million in cash went into her trust. Lindsey, as a residual beneficiary in the trust, would receive most of the money – not E.A. children. The attorney also effectuated amending the trust to grant Lindsey and Oliver greater rights, while advising them to withhold that information from E.A.’s children. E.A.’s children sued Lindsey, Oliver, and the attorney for tortious interference and other tort claims. The jury returned a verdict for E.A.’s children.
The court of appeals first addressed the tortious interference with inheritance claim: “Someone 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.” Id. The court noted that the San Antonio, Houston (1st Dist.) and El Paso courts recognized such a claim. The Amarillo court reviewed several Fort Worth opinions, where the case had been transferred from, to see if Fort Worth had recognized such a claim, and determined that Fort Worth had not. The court held that it was solely the authority of the Texas Legislature or the Texas Supreme Court to create a new cause of action. Court rendered for the defendants refusing to recognize that new cause of action.
The court reversed on the fraud and other tort claims due to insufficient evidence of damages. The court affirmed the mental incompetence finding on the trust changes and sale of the ranch. The court then affirmed in part a finding of a constructive trust, making Lindsey hold any proceeds that should have gone to E.A.’s heirs in trust for them. This case is currently pending in the Texas Supreme Court.
INTERSTING NOTE: There has been increased activity by creative plaintiffs to assert tortious interference with inheritance claims against attorneys retained by a testator. The beneficiaries have no direct cause of action for malpractice, but assert that the attorney interfered with their inheritance by wrongfully creating estate documents when the attorney allegedly knew that the testator was incompetent or was under undue influence.