Today, the Texas Supreme Court granted a petition for review in Jackson Walker, LLPO v. Kinsel, No. 07-13-00130-CV, 2015 Tex. App. LEXIS 3586 (Tex. App.—Amarillo April 10, 2015, pet. granted). The Court’s staff attorney describes the issues as: “(1) whether Texas law recognizes tortious interference with inheritance rights; (2) whether sufficient evidence supports the jury’s fraud verdict and its damages award; (3) whether damages may be awarded based on the jury’s undue-influence finding; and (4) whether sufficient evidence supports the jury’s finding that a woman lacked mental capacity to amend her trust.”

In Jackson Walker, Lesey and E.A. Kinsel owned a ranch, and when E.A. died, he divided his half between his children and Lesey. Lesey owned sixty percent 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.’s 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 with inheritance rights and other tort claims. The jury returned a verdict for E.A.’s children.

The Amarillo 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 many Texas intermediate appellate courts recognized such a claim. The court reviewed several Fort Worth Court’s 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 directly done so. The court also noted that it and the Texas Supreme Court had not recognized the claim. 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.

More recently, the Austin Court of Appeals weighed in and agreed with the Amarillo Court that Texas has not yet recognized a tortious interference with inheritance claim. In Anderson v. Archer, the trial court’s judgment awarded the plaintiffs $2.5 million in damages based on a tortious interference with inheritance claim. No. 03-13-00790-CV, 2016 Tex. App. LEXIS 2165 (Tex. App.—Austin March 2, 2016, pet. filed). The defendants appealed and argued that Texas law does not recognize such a claim. The court of appeals agreed with the appellants. The court first analyzed prior cases from that court and determined that it had never adopted such a claim. It cited the Jackson Walker opinion and agreed with it. The court in Anderson stated:

In short, we agree with the Amarillo Court of Appeals that “neither this Court, the courts in Valdez, Clark, and Russell, nor the trial court below can legitimately recognize, in the first instance, a cause of action for tortiously interfering with one’s inheritance.” We also agree with the Amarillo court’s assessment that neither the Legislature nor Texas Supreme Court has done so, or at least not yet. Absent legislative or supreme court recognition of the existence of a cause of action, we, as an intermediate appellate court, will not be the first to do so.

Id.  The court also rejected an argument that a tortious interference with inheritance claim is merely a subset of the tort of tortious interference with a contract or prospective contractual or business relationship. It held that it was a separate claim that had not yet been recognized.  The court therefore reversed the award for the plaintiff.