In apparent conflict with an order by the NH Trust Docket in Swenson v. Christo previously discussed by Andrea Schweitzer, the NH Federal District Court (DeClerico, J.) in Doyon v. Porter held that “New Hampshire would recognize the tort of intentional interference with an inheritance.” Thanks to Greg Moffett who kindly brought Doyon to my attention and congratulations to Jan Myskowski and Marla Matthews who were prevailing counsel. I discuss each case below and my thoughts as to how they can be reconciled.
Swenson
In Swenson, petitioners as trustees and beneficiaries of a trust claimed that a deceased predecessor trustee breached his fiduciary duties by making impermissible trust distributions to himself and that these distributions were induced by the undue influence of his caregiver who benefited from the distributions. Following the death of the former trustee, the petitioners in the Probate Court sued his estate, whom we represent, and also brought claims against the caregiver for intentional interference with inheritance, restitution, and constructive trust. The Probate Court had ancillary jurisdiction over the claims against the caregiver pursuant to RSA 547:3-l in that they concerned “claims for liquidated or non-liquidated damages or for the recovery of money or property brought on behalf of [a]… trust.” Following transfer of the case to the Trust Docket, the caregiver moved to dismiss the inheritance interference claim, arguing that no such cause of action exists under NH law.
Noting the NH Supreme Court’s “reluctance to recognize new tort causes of action if other remedial actions are available,” Judge King cited with favor the reasoning of other courts and the Third Restatement of Torts which limit assertion of the claim to claimants who have “no adequate remedy in probate.” Consequently, the Court granted the dismissal, holding, “Although it need not predict today whether New Hampshire would adopt the tort, the Court concludes that it would not be available in this case where there is an adequate remedy in probate, namely the already pleaded actions of restitution and constructive trust….” (Emphasis added.) The Trust Docket, thus declined to adopt the new tort in consideration of the availability of the “already pleaded actions of restitution and constructive trust.”
Doyon
The litigation in Doyon arose after the deaths of a husband (“Husband”) and wife (“Wife”), with the litigants being two step-brothers with plaintiff being the son of Wife and defendant being the son of Husband. Plaintiff claimed that defendant through various conduct prevented Husband from honoring estate planning promises he made to Wife that if carried out would have substantially benefited plaintiff. Like the claimants in Swenson, plaintiff sued for constructive trust and intentional interference with inheritance. Defendant moved to dismiss the intentional inheritance interference claim on grounds that it is not a recognized cause of action under New Hampshire law. In objecting to the motion, plaintiff brought Swenson to the Court’s attention.
In deciding that the NH Supreme Court would likely adopt this cause of action, the Federal District Court considered the wide adoption of the claim nationally, its treatment in the Restatement of Torts and NH’s adoption of related tort claims:
New Hampshire generally follows the Restatement (Second) of Torts in actions for tortious interference, which is expressly recognized in New Hampshire in the context of interference with contractual relations. See
Nat’l Employment Serv. Corp. v. Olsten Staffing Servs., Inc., 145 N.H. 158, 162 (2000) (“We have previously applied the Restatement (Second) of Torts to actions for tortious interference with contractual relations.”); see also Morancy v. Morancy, 134 N.H. 493, 495-96 (1991) (“The tort of intentional infliction of emotional distress is widely recognized in other States, see Restatement (Second) of Torts § 46 . . . , and we now recognize the tort in this State.”). Indeed, intentional interference with an inheritance or gift is not a significant departure from the tort of intentional interference with a contractual relationship, and the New Hampshire Supreme Court has expressed a willingness to adopt a cause of action where it bears a close relationship to another, already-recognized cause of action. See Morancy, 134 N.H. at 496 (“Having previously recognized the tort of negligent infliction of emotional distress, there is no logical reason why we should not now recognize the tort of intentional infliction of emotional distress.”); Restatement (Second) of Torts § 774B (stating that interference with inheritance is “an extension to a type of noncontractual relation of the principle found in the liability for intentional interference with prospective contracts . . . .”).
The Court did not discuss Swenson and noted that defendant had failed to present any argument in response to plaintiff’s assertion that he did not have an adequate remedy in Probate Court:
(Emphasis added).
To be sure, courts have found that the tort should not be recognized in circumstances where an adequate remedy is available in probate court or through a statutory scheme. See Umsted, 446 F.3d at 21-22. [Defendant] does not identify any statutory scheme that [plaintiff] could have used to bring his claims, and he does not contest [plaintiff’s] assertion that the probate court does not provide a remedy for this claim.
Reconciling Doyon and Swenson
In light of the NH Supreme Court’s recent decision in Rogers, the claims at issue in Doyon, unlike those in Swenson, could not have been brought in Probate Court and there was, therefore, no adequate remedy in Probate Court in Doyon. As Andrea Schweitzer discussed, Rogers, consistent with longstanding precedent requiring narrow construction of Probate Court jurisdiction, held that RSA 547:3,I,(b) does not empower the court to hear collateral disputes between parties arising from the administration of a probate estate. This statute appears to me to be the only arguable basis for Probate Court jurisdiction over the Doyon dispute – plaintiff essentially claims that he would have inherited more from Husband’ probate estate if defendant had not prevented Husband from carrying out certain estate planning promises. Rogers would appear to preclude the Doyon claims from being filed in Probate Court. In cases such as Swenson where the Probate Court has jurisdiction, an inheritance interference claim will not be actionable if a constructive trust or other restitution remedy is available. In cases such as Doyon where the Probate Court has no jurisdiction in light of Rogers, the inheritance interference claims likely may be brought regardless if an alternative restitution remedy is available.
(Note: Ralph Holmes is currently retired from McLane Middleton. For information on this or other probate litigation issues, please contact Alexandra Cote at alexandra.cote@mclane.com.)
