Copyright (c) 2003 Baylor University
Baylor Law Review
ARTICLE: The Disappointed Heir's Revenge, Southern Style: Tortious Interference with Expectation of Inheritance - A Survey with Analysis of State Approaches in the Fifth and Eleventh Circuits*
* This Article is dedicated to Molly Goheen, of blessed memory, in the hopes that it will contribute to wise planning and peace among family members.
55 Baylor L. Rev. 79
Diane J. Klein**
I. Introduction 1
With her E! Entertainment Television show that began airing August 4, 2002, 2 the teased platinum mane, crimson lips, and dark sunglasses of Anna Nicole Smith are back in the news. 3 Despite the media feeding frenzy surrounding the huge award made by the California Bankruptcy Court to the former 1992 Playboy Playmate of the Year, most viewers probably do not know the legal basis of her claim. 4 It was not a will contest that netted her nearly $ 90 million 5 from the approximately $ 1.6 billion left behind by her deceased nonagenarian husband. 6 In fact, she recovered her damages from her middle-aged stepson, E. Pierce Marshall, for "tortious interference with expectation of inheritance," a cause of action recognized under applicable Texas law. 7
Although Smith's award is likely to be one of the largest ever for this tort, claims for damages on this theory are becoming increasingly common. Back in the nineteenth century, the only remedy available to persons disappointed by the contents of a will was a will contest, known in some states as a "caveat proceeding." A will contest, which usually takes place in a specialized state probate court, is an in rem proceeding against the estate of the decedent. 8 Generally, the estate bears the cost of defending the proffered will. 9 In theory, a will contest offers all interested parties the opportunity to determine whether the document presented for probate is in fact the ...
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